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LEADING  CASES 


ON 


Private  International  Law 


BY 

JOHN    W.    DWYER.    LL.M. 

INSTRUCTOR    OF    LAW    IN    THE    UNIVERSITY    OF    MICHIGAN 


SECOND  EDITION 


CHICAGO: 

CALLAGHAN  &  COMPANY 

1904 


Copyright,  1904 

BY 
CALLAGHAN  &  COMPANY 


T 


'I 

V) 


PREFATORY  NOTE 


This  second  and  enlarged  edition  of  leading  cases  made 
by  Mr.  Dwyer  has  been  carefully  examined  by  me.  I  find  that 
it  covers,  as  fully  as  can  be  done  in  that  way,  the  subject  of 
my  lectures  on  Private  International  Law ;  and  I  commend  it 
to  the  favorable  consideration  of  students  and  others. 

Otto  Kirchner, 

University  of  Michigan,  September,  1904. 


fi87172 


CONTENTS 


INTRODUCTION. 
CHAPTER   I. 

PAGE. 

Nature  of  the  Subj  ect i 

Questions    Involved    2 

Law  of  a  Country  3 

Origin  and  Growth  of  Private  International  Law 7 

Basis  of  Private  International  Law   8 

Similarity  of  Rules  as  to  the  Choice  of  Law 11 

Various  Names  of  the  Subject 12 

Private  International  Law  Defined  and  Distinguished  15 

CHAPTER  II. 

Territorial   Jurisdiction   of  Nations    16 

Territorial  Limits  of  the  United  States 46 

State   Limits    47 

County    Limits    47 

Ships  on  the  High  Seas 47 

Criminal  Prosecution  for  Acts  Committed  Without  the  State  48 

Civil  Actions  for  Acts  Without  the  State 51 

Laws   of   Newly   Acquired   Territory 52 

CHAPTER  III. 

Domicil    54 

Domicil  Defined   56 

Requisites   of   Domicil 56 

Importance   of   Domicil 57 

Domicil  Distinguished  from  Other  Terms 57 

Domicil  of  Origin  and  of  Choice 58 

Domicil  as   Determining   Status 58 

Reverter    of    Domicil 79 

Commercial  Domicil   82 


Vi  CONTENTS 

CHAPTER  IV. 

PAGE. 

Domicil  of  Particular  Persons ^ 

Married   Women    °9 

Minors    ^^ 

Adopted  Child   5*6 

Wards    ^ 

Clergymen    ^ 

Students    ^ 

Officers    96 

Soldiers  •- ^6 

Servants    ^ 

Prisoners  97 

Fugitives    97 

Insane  Persons  ^"^ 

Paupers   ^"^ 

Corporations 97 

Domicil  and  Taxation 98 

Domicil,  and  Acts  in  Uncivilized  Countries 102 

Domicil    102 

Marriage  ^°-^ 

Contract   ^^3 

Alienation  of  Movables 104 

Torts    ^...  104 

Procedure    ^^4 


CHAPTER  V. 

Nationality  ^°^ 

Citizenship  by  Birth 106 

Citizenship  by  Naturalization 106 

Who  May  Naturalize 106 

Who  May  be  Naturalized '^'^■Z 

Methods  of  Naturalization 124 

Conditions  Necessary  to  Naturalization 124 

Alien  Friends  and  Alien  Enemies. 124 

Rights  of  Aliens 12  + 


JURISDICTION  OF  COURTS. 

CHAPTER  VI. 

Locality  of  Actions 120 

Local  and  Transitory  Actions  Distinguished 126 

Actions  for  Injuries  to  Land  in  .Another  State 139 


CONTENTS  Vll 

PACE. 

Penal   Laws 1 50 

Defined  and  Distinguished  from  Damages 150-168 

Extra-territorial  Effect  of  Penal  Laws 151 -168 

What   Laws  are   Considered    Penal 150-168 

Purpose  and  Effect  of  the  Full  Faith  and  Credit  Clause 166 

CHAPTER  Vn. 

Proceedings  in  Personam  and  In  Rem 169 

Authority  of  Judicial  Tribunals 170 

Service  of  Process 171 

Sovereignty   of   States 171 

How  Jurisdiction  is  Acquired 172 

Effect  of  Judgments  Against   Non-Residents 173 

•         Full  Faith  and  Credit  Clause 178 

Conclusiveness   of  Judgments 178 

Due  Process  of  Law 1 78 

Divorce   184 

Nature  of  the  Marriage  Contract 188 

Power  of  State  and  Federal  Governments  to  Regulate 190 

Full  Faith  and  Credit  Clause 191 

Extra-territorial  Effect  of  Judgment  of  Divorce 192 

Domicil  as  Determining  Jurisdiction  in  Cases  of  Divorce....  199 

Law  Applied  to  Divorce  Proceedings 199 

Service  of  Process  Upon  Defendant 199 

Bankruptcy   200 

Title  of  Foreign  Assignees  in  Bankruptcy 200 

Extra-territorial  Effect  of  Bankrupt  and  Insolvent  Laws 203 

Involuntary  Assignments  in  Bankruptcy 204 

Voluntary  Assignments  in  Bankruptcy 204 

Rights   of   Creditors 208 

Administration  in  Bankruptcy 214 

CHAPTER  VIII. 

Foreign  Executors,  Administrators,  Trustees  and  Receivers 215 

Extra-territorial   Powers  of   Such    Officers 215 

Relation  Between  Principal  and  Ancillary  Administration....  215 

CHAPTER  IX. 

Foreign  Judgments  2^0 

Extra-territorial  Recognition  of  Judgments 230 

Conclusiveness  of  Foreign  Judgments 242 

Situs  of  a  Debt 254 


yiii  CONTENTS 

CHOICE  OF  LAW. 
CHAPTER  X. 

PAGE. 

Capacity  of  Persons 262 

Foreign  Corporations   265 

Defined  • 265 

Extra-territorial   Powers    280 

Power  of  a  State  to  Exclude 281 

What  Constitutes  Doing  Business  in  a  State 281 

Actions  by  and  Against  Foreign  Corporations 281 

Guardian  and  Ward 282 

Guardian  of  the  Person 282 

Testamentary  and  Statutory  Guardians 282 

Who  May  be  Appointed  Guardian "288 

Discretion  of  the  Court • 290 

Rights  of  Foreign  Guardians 290 

Guardian  of  the  Property ■ 291 

Degree  of  Care  to  be  Exercised  by  Guardian 291 

What  Law  Determines  Guardian's  Liability 291 

Power  of  Foreign  Guardians  to  Sue  and  be  Sued 309 


CHAPTER  XL 

Legitimation  and  Adoption 3io 

Legitimation  by  Subsequent  Acts  of  Parents 310 

The  Law  Applied  to  Acts  of  Legitimation. 310 

Marriage  ^^ 

General  Rule  as  to  Validity  of  Marriage 338 

Exceptions  to  the  General  Rule 338 

To  What  Extent  are  Foreign  Marriages  Recognized 338 

Extra-territorial  Effect  of  Restrictions  on  Marriages 338 

Property  Rights  of  Husband  and  Wife  as  Affected  by  the  Marriage.  .  352 


CHAPTER  Xn. 

Personal  Property  and  Real  Property 362 

Extra-territorial  Effect  of  Transfers  of  Personal   Property. .  .  362 

Conditional   Sales  of  Personal   Property 380 

Gifts  of  Personal   Property 397 

Mortgages  of  Personal  Property 400 

Conveyances  of  Real  Property 40i 


CONTENTS  ix 

CHAPTER  XIII. 

Contracts    402 

Theory  of  the  Law  of  Contracts 402 

Place  Where  Contract  is  Made 403 

Validity  of  Contract 412 

Formalities   of   Contract 43Q 

Obligation  of  Contract 43Q 

Interpretation  of  Contract 435 

Performance  of   Contract 4jg 

Discharge  of  Contract 435 

CHAPTER  XIV. 

Contracts — [Continued] 470 

Usurious  Contracts  4-c 

Statute  of  Frauds 4gi 

Contracts  of  Married  Women 493 

Contracts  of  Carriers cqo 

CHAPTER  XV. 

Torts    526 

Intestate  Succession  547 

Law  of  Domicil  Determines  Distribution  of  Personal  Property  547 

Law  of  Place  of  Real  Property  Determines  Descent 547 

Testamentary   Succession    553 

Validity  of  a  Will  of  Personal  Property 553 

Formalities,  Capacity,  etc.,  of  Will  of  Personal  Property 553 

Validity  of  Will  of  Real  Estate 565 

Formalities,  Capacity,  etc.,  of  Real  Estate 565 

Execution  of  Powers  in  a  Will 567 

CHAPTER  XVL 

Procedure  57^^ 

Comment   573 

Remedies  and  Process 575 

Evidence   576 

Limitation     577 

Set-Off 577 

Pleading    Foreign    Laws 579 

Judicial  Notice  and  Proof  of  Foreign  Laws 579 

Presumption  as  to  Foreign  Law 580 


CASES  REPORTED 


^-  PAGE. 

Akers  v.  Demond 103  Mass.  318 470 

Andrews  v.   Andrews 188  U.  S.  14 184 

B. 

Bank  V.  Balcom 35  Conn.  351 79 

/'^ank  of  Augusta  v.  Earle 13  Pet.  (U.  S.)  519 265 

Bamett  v.  Kinney 147  U.  S.  476 2,1^ 

Blythe  v.  Ayres 96  Cal.  532 310 

Bowles  V.   Field 78  Fed.  Rep.  742 497 

British  So.  Africa  v.  Companhia 18  L.  R.  App.  Cs.  602 126 

Burnett  v.  Pa.  Ry.  Co 176  Pa.  St.  45 524 

C. 

Cleveland  Machine  Works  v.  Lang.  .67  N.  H.  348 392 

Chicago,  Etc.,  Ry.  v.  Keokuk 108  111.  317 ■" 224 

Chicago  Ry.  Co.  v.  Sturm 174  U.  S.  710 254 

Commonwealth   v.   Lane 113  Mass.  458 338 

Cotting  V.   De   Sartiges 17  R-  I.  668 567 

D. 

Davis  V.  New  York  Ry 143  Mass.  301 533 

Dennick  v.  Ry.  Co 103  U.  S.  11 529 

E 

Emery   v.    Burbank 163   Mass.  326 486 

Emery   v.   Clough 63  N.  H.  552 397 

Equit.  Life  Assur'e  Co.  v.  Clements.  .  140  U.  S.  226 403 

F. 

Ferguson  v.   Crawford 70  N.  Y.  253 242 

Fessenden    v.   Taft 56  N.  H.  39 474 

First  National  Bank  v.  Shaw 70  So.  We.st.  Rep.  807 493 

Flagg  V.  Baldwin 38  N.  J.  Eq.  219 427 

Ford  V.  Ford 70  Wis.   19 565 

Frothingham   v.    Shaw 175  Mass.  59 98 


CASES    REPORTED  Xl 

G. 

PAGE. 

Green  v.  Van  Buskirk 5  Wall.  307,  7  Wall.  139 362 

H. 

Hart    V.    Mills 52  Iowa  56 477 

Heaton  v.  Eldridge 56  Ohio  St.  87 489 

Herrick  v.  Minneapolis  Ry 31   Minn.   11 543 

Hervey  v.  Locomotive  Works 93  U.  S.  664 380 

Higgins  V.  Central  Ry 155   Mass.    176 538 

Hilton   V.   Guyot I59  U.  S.  113 230 

Huntington  v.   Attrill 146  U.  S.  657 150 


In   re   Stockman 71    Mich.    180 282 

In    re   Waite 99  N.  Y.  433 200 


Johnson  v.   Powers 139  U.  S.  156 218 

Jones  V.   Surprise 64  N.  -H.  243 412 


Lamar  v.  Micou 112  U.  S.  452 291 

Lawrence  v.   Kitteridge 21    Conn.   576 547 

Leroux  V.  Brown 74  Eng.  Com.   Law  800 481 

Little  V.  Chicago,  Etc..  Ry 65  Minn.  48 139 

Liverpool   St'm  Co.  v.  Phenix  Ins.  Co.  129  U.  S.  397 500 

Long   v.    Hess 154  III.  482 is~ 

M. 

Machado  v.  Pontes 2  L.  R.  Q.  B.  D.  231 526 

Marvin  Safe  Co.  v.  Norton 48  N.  J.  L.  410 386 

Maynard  v.  Hall 92  Wis.   565 478 

Miller  V.   Tiffany i   Wall.  298 473 

Milliken  v.   Pratt 125   Mass.   374 418 

Moultrie  v.  Hunt 2;^  N.  Y.  394 553 

N. 

Nichols  &  Shcpard  v.   Marshall 108  Iowa  518 262 

Northampton  Mut.  Ins.  Co.  v.  Tuttlc.  40  N.  J.  L.  476 408 


Xll  CASES    REPORTED 

P. 

PAGE. 

Pennoyer   v.    Neff ...95  U.S.  714 169 

Poison  V.  Stewart 167  Mass.  211 439 

Price  V.  Price 156  Pa.  St.  617 54 

Pritchard  v.  Norton 106  U.  S.  124 455 

R. 

Regina  v.   Keyn 13  Cox  C.  C.  403 16 


Scudder  v.  Union  National  Bank. ...  91  U.  S.  406 447 

Staples  V.  Knott 128  N.  Y.  403 416 

U. 

Udny  V.  Udny i  H.  L.  Scotch  &  Div.  App.  Cs.  441  58 

United  States  v.  Rodgers 109  Fed.  Rep.  886 348 

United  States  v.  Wong  Kim  Ark.  ...  169  U.  S.  649 106 

W. 

Watertown  v.   Greaves 50  C.  C.  App.  172 89 

Wilkins  v.  EHett 108  U.  S.  256 215 


LEADING  CASES 


ON 


PRIVATE  INTERNATIONAL  LAW. 


CHAPTER   I. 
INTRODUCTION. 

THE  NATURE  OF  THE  SUBJECT. 

[Dicey  Conflict  of  Laws,  p.  i.*] 

T.  Questions  Involved.  5.  Similarit}' of  Rules  as  to  the 

2.  The  Law  of  a  Country'.  Choice  of  Law. 

3.  Origin   and   Growth   of   Private         6.  Various  Names  of  the  Subject. 

International   Law.  7.  Private  International  Law  Defined 

4.  Basis  of  Private  International  Law.  and  Distinguished. 

Most  of  the  cases  which  occupy  an  English  Court  are  in  every 
respect  of  a  purely  English  character;  the  parties  are  English- 
men, and  the  cause  of  action  arises  wholly  in  England,  as  where 
A,  a  London  tradesman,  sues  X,  a  citizen  of  London,  for  the  price 
of  goods  sold  and  delivered  in  London.  When  this  is  so,  every 
act  done,  or  alleged  to  be  done,  by  either  of  the  parties  clearly  de- 
pends for  its  legal  character  on  the  ordinary  rules  of  English  law. 

Cases,  however,  frequently  come  before  our  Courts  which 
contain  some  foreign  element ;  the  parties,  one  or  both  of  them, 
may  be  of  foreign  nationality,  as  where  an  Italian  su.es  a  French- 
man for  the  price  of  goods  sold  and  delivered  at  Liverpool ;  the 
cause  of  action,  or  ground  of  defence,  may  depend  upon  transac- 
tions taking  place  wholly  or  in  part  in  a  foreign  country ;  as  where 
A  sues  A^  for  an  assault  at  Paris,  or  on  a  contract  made  in  France 
and  broken  in  England,  or  where  A'  pleads  in  his  defence  a  dis- 
charge under  the  French  bankruptcy  law ;  the  transactions,  lastly, 
in  question,  though  taking  place  wholly  in  England,  may,  in  some 

*This  extract  is  inserted  by  permission  of  the  publishers  of  the  Ameri- 
can Edition  of  "Dicey  on  the  Conflict  of  Laws." 


2  PRIVATE    INTERNATIONAL    LAW. 

way,  have  reference  to  the  law  or  customs  of  a  foreign  country; 
this  is  so,  for  instance,  when  A  wishes  to  enforce  the  trusts  of  a 
marriage  settlement  executed  in  England,  but  which  on  the  face 
of  it,  or  by  implication,  refers  to  French  or  Italian  law. 

Questions  Involyed. — Whenever  a  case  containing  any 
foreign  element  calls  for  decision,  the  judge  before  whom  it  is 
tried  must,  either  expressly  or  tacitly,  find  an  answer  to,  at  least, 
two  preliminary  questions. 

First  Question. — Is  the  case  before  him  one  which  any  Eng- 
lish Court  has,  according  to  the  law  of  England,  a  right  to  deter- 
mine? 

The  primary  business  of  English  tribunals  is  to  adjudicate  on 
transactions  taking  place  in  England  between  Englishmen,  or  at 
any  rate  between  persons  resident  in  England ;  or,  briefly,  to  de- 
cide English  disputes.  There  clearly  may  be  matters  taking  place 
in  a  foreign  country,  or  between  foreigners,  with  which  no  Eng- 
lish Court  has,  according  to  the  law  of  England,  any  concern 
whatever ;  thus  no  Division  of  the  High  Court,  and  a  fortiori  no 
other  English  tribunal,  will  entertain  an  action  for  the  recovery  of 
land  in  any  other  country  than  England.  When,  therefore,  a 
case  coming  before  an  English  judge  contains  a  foreign  element, 
he  must  tacitly  or  expressly  determine  whether  it  is  one  on  which 
he  has  a  right  to  adjudicate.  This  first  question  is  a  question  of 
jurisdiction  (fonim). 

Second  Question. — What  (assuming  the  question  of  juris- 
diction to  be  answered  alifirmatively)  is  the  body  of  law  with 
reference  to  which  the  rights  of  the  parties  are  according  to  the 
principles  of  the  law  of  England  to  be  determined? 

Is  the  judge,  that  is  to  say,  to  apply  to  the  matter  in  dispute 
(e.  g.,  the  right  of  A  to  obtain  damages  from  A^  for  an  assault  at 
Paris)  the  ordinary  rules  of  English  law  applicable  to  like  trans- 
actions taking  place  between  Englishmen  in  England,  or  must  lie, 
because  of  the  "foreign  element"  in  the  case,  apply  to  its  decision 
the  rules  of  some  foreign  law,  e.  g.,  the  provisions  of  French  law 
as  to  assaults  ? 

This  second  question  is  an  inquiry  not  as  to  jurisdiction,  but 
as  to  the  choice  of  law  (lex). 

Each  of  these  inquiries,  be  it  noted,  must  be  answered  by  any 
judge,  English  or  foreign,  in  accordance  with  definite  principles, 
and,  by  an  English  judge,  sitting  in  an  English  Court,  in  accord- 
ance with  principles  or  rules  to  be  found  in  the  law  of  England. 
These  rules  make  up  that  department  of  English  law  which  deals 


NATURE    OF    THE    SUBJECT.  3 

with  the  conflict  oi  laws,  and  may  be  provisionally  described  as 
principles  of  the  law  of  England,  governing  the  extra-territorial 
operation  of  law  or  recognition  of  rights.  This  branch  of  Eng- 
lish law  is  as  much  part  of  the  law  of  England  as  the  Statute  of 
Frauds,  or  the  Statute  of  Distributions.  The  subject,  however, 
with  which  we  are  dealing  is,  partly  from  ambiguity  of  language, 
and  partly  from  other  causes,  involved  in  so  much  obscurity  of  its 
own  that  we  may  well  examine  somewhat  further  into  the  nature 
of  our  topic,  and  look  at  the  matter  from  a  somewhat  different 
point  of  view  from  the  side  whence  we  have  hitherto  regarded  it. 

The  Law  of  a  Country. — The  law  of  every  country,  as 
for  example  of  England,  consists  of  all  the  principles,  rules,  or 
maxims,  enforced  by  the  Courts  of  that  country  under  the  author- 
ity of  the  state. 

It  makes  no  difference  for  our  present  purpose,  whether  these 
principles  be  written  or  unwritten  ;  whether  they  be  expressed  in 
Acts  of  Parliament,  or  exist  as  customs ;  whether  they  are  the 
result  of  direct  legislation,  or  are  created  by  judicial  decisions. 
Any  rule  or  maxim  whatsoever,  which,  when  the  proper  occasion 
arises,  will  be  enforced  by  the  Courts  of  England  under  the  au- 
thority of  the  state,  is  part  of  the  law  of  England.  Thus  the 
rule  that  land  descends  to  the  heir,  derived  as  it  is  from  the  Com- 
mon Law ;  the  rule  that  personal  property  goes  to  the  next  of  kin, 
depending  as  it  now  does  upon  the  Statute  of  Distributions ;  the 
principle  that  a  simple  contract  is  not  valid  without  a  considera- 
tion; or  the  doctrine,  created  as  it  is  by  judicial  legislation,  that 
the  validity  of  a  marriage  ceremony,  wherever  made,  depends  on 
the  law  of  the  country  where  the  marriage  is  celebrated,  are  each 
of  them,  however  different  in  character  and  origin,  rules  enforced 
by  English  Courts,  and  therefore  each  of  them  both  laws  and  part 
of  the  law  of  England. 

The  law  of  England,  however,  taken  in  its  most  extended  and 
most  proper  sense,  may,  in  common  with  the  law  of  every  civilized 
country,  c.  g.,  of  Italy  or  of  France,  be  divided  into  two  branches. 

The  first  branch  of  the  law  of  England  may  be  described,  if 
not  with  absolute  precision,  yet  with  sufficient  accuracy  for  our 
present  object,  as  the  body  of  rules  which  regulate  the  rights  of 
the  inhabitants  of  England  and  determine  the  legal  effect  of  trans- 
actions taking  place  between  Englishmen  within  the  limits  of 
England.  Indirectly,  indeed,  these  rules  may,  under  certain  cir- 
cumstances, affect  transactions  taking  place  abroad  ;  their  direct 
and  immediate  effect,  however,  is  to  regulate  the  actions  of  men 


4  PRIVATE    INTERNATIONAL    LAW. 

and  women  living  in  England.  They  may,  therefore,  for  the  sake 
of  distinction  from  the  other  branch  or  portion  of  English  law, 
be  called  the  "territorial"  or  "local"  law  of  England,  ^his  terri- 
torial law  constitutes  indeed  so  much  the  oldest  and  most  impor- 
tant part  of  English  law,  that  it  has  been  constantly  taken  to  be, 
and  treated  as,  the  whole  of  the  law  of  the  land.  Blackstone's 
Commentaries,  for  example,  though  written  with  the  avowed  ob- 
ject of  describing  the  whole  of  the  "law  of  England,"  contain  no 
mention  of  any  rules  which  do  not  belong  to  the  territorial  or  local 
law.  With  this  branch  of  the  law,  important  though  it  be,  the 
writer  on  the  conflict  of  laws  has  no  direct  concern. 

The  second  branch  of  the  law  of  England  consists  of  rules 
which  do  not  directly  determine  the  rights  or  liabilities  of  particu- 
lar persons,  but  which  determine  the  limits  of  the  jurisdiction  to 
be  exercised  by  the  English  Courts  taken  as  a  whole,  and  also  the 
choice  of  the  body  of  law,  whether  the  territorial  law  of  England 
or  the  law  of  any  foreign  country,  by  reference  to  which  English 
Courts  are  to  determine  the  different  matters  brought  before  them 
for  decision. 

These  rules  about  jurisdiction  and  about  the  choice  of  law, 
which  make  up  the  second  branch  of  the  law  of  England,  are 
directions  for  the  guidance  of  the  judges. 

As  to  purely  English  transactions  no  such  guidance  can  be 
needed.  English  Courts  clearly  have  jurisdiction  in  respect  of 
matters  taking  place  within  this  country,  for  to  determine  the 
legal  effect  of  such  matters  is  the  very  object  for  which  the  Courts 
are  constituted.  The  legal  character,  again,  of  acts  done  in  Eng- 
land by  Englishmen  must  obviously  be  determined  by  reference  to 
the  territorial  law  of  England,  since  the  very  object  for  which  this 
law  is  created  is  to  regulate  the  actions  of  Englishmen  in  England. 

The  rules  therefore  in  question,  since  they  are  inapplicable  to 
purely  English  transactions,  must  have  reference  to  cases  which 
contain,  or  may  contain,  some  foreign  element.  They  are,  in  fact,, 
directions  for  the  guidance  of  the  judges  when  called  upon  to  deal 
with  transactions  which,  either  because  of  the  foreign  character 
of  one,  or  of  both,  of  the  parties,  or  because  something  material 
to  the  case  has  been  done,  or  is  intended  to  be  done,  in  a  foreign 
country,  or  has  been  done  with  reference  to  some  foreign  law, 
may,  possibly  at  least,  require  for  their  fair  determination,  refer- 
ence to  the  provisions  of  some  foreign  law.  If,  for  the  sake  of 
convenience,  we  dismiss  for  the  moment  from  our  attention  all 
questions  of  jurisdiction,  this  second  branch  of  the  law  of  England 


NATURE    OF    THE    SUBJECT.  D 

may  be  described  in  the  following  terms.  It  is  that  part  of  the 
law  of  England  which  provides  directions  for  the  judges  when 
called  upon  to  adjudicate  upon  any  question  in  which  the  rights  of 
foreigners,  or  the  effect  of  acts  done,  or  to  be  done,  in  a  foreign 
country,  or  with  reference  to  a  foreign  law,  require  determination. 
These  directions  determine  whether  a  given  class  of  cases  (e.  g., 
cases  as  to  contracts  made  in  foreign  countries)  must  be  decided 
wholly  by  reference  to  the  territorial  law  of  England,  or  either 
wholly,  or  in  part,  by  reference  to  the  law  of  some  foreign  coun- 
try, e.  g.,  France.  Since  these  directions  for  the  choice  of  law 
may  provide  either  that  the  territorial  law  of  England  shall,  under 
certain  circumstances,  govern  acts  taking  place  abroad,  e.  g.,  the 
proper  execution  of  a  will  made  in  France  by  a  testator  domiciled 
in  England,  or  that  foreign  law  shall,  under  certain  circumstances, 
govern  acts  done  in  England,  e.  g.,  the  proper  execution  of  a  will 
made  in  England  by  a  testator  domiciled  in  France,  they  may, 
as  has  been  already  intimated,  be  described  as  "rules  for  determin- 
ing the  extra-territorial  operation  of  law,"  or  better,  "the  extra- 
territorial recognition  of  rights,"  and  the  branch  of  law  with 
which  we  are  concerned  is,  if  we  include  within  it  both  rules  as 
to  jurisdiction  and  rules  as  to  the  choice  of  law,  nothing  else  than 
the  subject  generally  treated  of  by  English  and  American  writers 
under  the  title  of  Conflict  of  Laws,  and  by  Continental  authors 
under  the  title  of  Private  International  Law. 

A  master  of  this  twofold  division  of  the  law  of  England  (or 
for  that  matter  of  any  civilized  country)  puts  a  student  on  his 
guard  against  an  ambiguity  of  language  which,  unless  clearly  per- 
ceived, introduces  confusion  into  every  discussion  concerning  the 
conflict  of  laws. 

The  term  "law  of  a  given  country,"  e.  g.,  law  of  England,  or 
law  of  France,  is  an  expression  which,  under  different  forms,  nec- 
essarily recurs  again  and  again  in  every  treatise  on  private  inter- 
national law.  It  is  further  an  expression  which  appears  to  be  per- 
fectly intelligible,  and  therefore  not  to  demand  any  explanation. 
Yet,  like  many  other  current  phrases,  it  is  ambiguous.  For  the 
term  "law  of  a  given  country"  has,  at  least,  two  meanings.  It 
may  mean,  and  this  is  its  most  proper  sense,  every  rule  enforced 
by  the  Courts  of  that  country.  It  may  mean,  on  the  other  hand, 
and  this  is  a  very  usual  sense,  that  part  of  the  rules  enforced  by 
the  Courts  of  a  given  country  which  makes  up  the  "local"  or  "ter- 
ritorial" law  of  a  country.  To  express  the  same  thing  in  a  dif- 
ferent form,  the  term  "law  of  a  country"  may  be  used  as  either 


6  PRIVATE    INTERNATIONAL    LAW. 

including  the  rules  for  the  choice  of  law,  or  as  excluding  such 
rules  and  including  only  those  rules  or  laws  which,  as  they  refer 
to  transactions  taking  place  among  the  inhabitants  of  a  country 
within  the  limits  thereof,  I  have  called  local  or  territorial  law. 

This  ambiguity  may  be  best  understood  by  following  out  its 
application  to  the  expression  "law  of  England." 

The  term  "law  of  England"  may,  on  the  one  hand,  mean 
every  rule  or  maxim  enforced  or  recognized  by  the  English 
Courts,  including  the  rules  or  directions  followed  by  English 
judges  as  to  the  limits  of  jurisdiction  and  as  to  the  choice  of  law. 
This  is  the  sense  in  which  the  expression  is  used  in  the  absolutely 
true  statement  that  "every  case  which  comes  before  an  English 
Court  must  be  decided  in  accordance  with  the  law  of  England." 
The  term  "law  of  England"  may,  on  the  other  hand,  mean,  not 
the  whole  of  the  law  of  England,  but  the  local  or  territorial  law 
of  England  excluding  the  rules  or  directions  followed  by  English 
judges  as  to  the  limits  of  jurisdiction  or  as  to  the  choice  of  law. 
This  is  the  sense  in  which  the  expression  is  used  in  the  also  abso- 
lutely true  statements  that  "the  validity  of  a  will  executed  in  Eng- 
land by  a  Frenchman  domiciled  in  France  is  determined  by  Eng- 
lish judges  not  in  accordance  with  the  law  of  England  but  in  ac- 
cordance with  the  law  of  France,"  or  that  "a  will  of  freehold  lands 
in  England,  though  executed  by  a  foreigner  abroad,  will  not  be 
valid  unless  executed  in  conformity  with  the  law  of  England," 
i.  e.,  with  the  provision  of  the  Wills  Act,  1837. 

Hence  the  assertion  that  "while  all  cases  which  come  for  de- 
cision before  an  English  Court  must  be  decided  in  accordance 
with  the  law  of  England,  yet  many  such  cases  are,  and  must  be, 
decided  in  accordance,  not  with  the  law  of  England,  but  with  the 
law  of  a  foreign  country,  e.  g.,  France,"  though  it  sound  paradox- 
ical, or  self-contradictory,  is  strictly  true.  The  apparent  contra- 
diction is  removed  when  we  observe  that  in  the  two  parts  of  the 
foregoing  statement  the  term  law  of  England  is  used  in  two 
different  senses :  in  the  earlier  portion  it  means  the  whole  law  of 
England,  in  the  latter  it  means  the  territorial  law  of  England. 
This  ambiguity  is  made  plain  to  any  one  who  weighs  the  meaning 
of  the  well-known  dictum  of  Lord  Stowell  with  regard  to  the  law 
regulating  the  validity  of  a  marriage  celebrated  in  a  foreign  coun- 
try. The  question,  it  is  therein  laid  down,  "being  entertained  in 
"an  English  Court,  it  must  be  adjudicated  according  to  the  prin- 
"ciplcs  of  English  law,  applicable  to  such  a  case.  But  the  only 
"principle  applicable  to  such  a  case  by  the  laws  of  England  is, 


NATURE    OF    THE    SUBJECT.  7 

"that  the  validity  of  Miss  Gordon's  marriage  rights  must  be  tried 
"by  reference  to  the  law  of  the  country,  where,  if  they  exist  at  all, 
"they  had  their  origin.  Having  furnished  this  principle,  the  law 
"of  England  withdraws  altogether,  and  leaves  the  legal  question 
"to  the  exclusive  judgment  of  the  law  of  Scotland." 

Let  it  be  further  borne  in  mind  that  the  ambiguity  affecting 
the  term  law  of  England  affects  the  term  law  of  France,  law  of 
Italy,  and  the  like,  and  that  with  regard  to  statements  where 
these  terms  are  used,  the  reader  should  always  carefully  consider 
whether  the  expression  is  intended  to  include  or  to  exclude  the 
rules  followed  by  the  Courts  of  the  given  country,  c.  g.,  France, 
as  to  the  choice  of  law. 

The  general  character  of  our  subject  being  then  understood, 
there  remain  several  subordinate  points  which  deserve  considera- 
tion. 

Origin  and  Growth  of  Private  International  Law. — 
First.  The  branch  of  law  containing  rules  for  the  selection  of 
law  is  in  England,  as  elsewhere,  of  later  growth  than  the  ter- 
ritorial law  of  the  land. 

The  development  of  rules  about  the  conflict  of  law  implies 
both  the  existence  of  different  countries  governed  by  different 
laws, — a  condition  of  things  which  hardly  existed  when  the  law 
of  Rome  was  the  law  of  the  civilized  world, — and  also  the  exist- 
ence of  peaceful  and  commercial  intercourse  between  independent 
coimtrics. — a  condition  of  things  which  had  no  continuous  exist- 
ence during  the  ages  of  mediaeval  barbarism. 

It  was  not,  therefore,  until  the  development  of  something  like 
the  state  of  society  now  existing  in  modern  Europe  that  questions 
about  the  conflict  of  laws  powerfully  arrested  the  attention  of 
lawyers.  It  is  a  fact  of  great  significance  that  the  countries  where 
attention  was  first  paid  to  this  branch  of  law,  and  where  it  has 
been  studied  with  the  greatest  care,  have  been  countries  such  as 
Holland,  Germany,  Great  Britain,  or  the  United  States,  composed 
of  communities,  which,  though  governed  under  different  laws, 
have  been  united  by  the  force  either  of  law  or  of  sentiment  into 
something  like  one  state  or  confederacy.  States  of  this  descrip- 
tion, such  for  example  as  the  United  Netherlands,  both  felt  sooner 
than  others  the  need  for  giving  extra-territorial  eft'ect  to  local 
laws,  and  also  found  less  difficulty  than  did  other  countries  in 
meeting  this  necessity ;  since  the  local  laws  which  the  Courts  ap- 
plied were  not  in  strictness  foreign  laws,  but,  from  one  point  of 
view,  laws  prevailing  in  different  parts  of  one  state.     In  this  mat- 


8  PRIVATE    INTERNATIONAL    LAW. 

ter  the  history  of  France  supphes  one  of  these  instructive  excep- 
tions which  prove  the  rule.  France  was  never  a  confederacy,  but 
the  provinces  of  the  monarchy  were  governed  by  different  laws. 
Hence  the  call  for  determining  the  extra-provincial  effect  of  cus- 
toms raised  judicial  problems  about  the  choice  of  law.  It  is  also 
noteworthy  that  few  English  decisions  bearing  on  our  subject  are 
of  earlier  date  than  the  Union  with  Scotland.  None  are  known 
to  me  earlier  than  the  accession  of  James  I. 

Basis  of  Private  International  Law. — Secondly.  The 
growth  of  rules  for  the  choice  of  law  is  the  necessary  result  of 
the  peaceful  existence  of  independent  nations  combined  with  the 
prevalence  of  commercial  intercourse.  From  the  moment  that 
these  conditions  are  realized,  the  judges  of  every  country  are 
compelled  by  considerations  of  the  most  obvious  convenience  to 
exercise  a  choice  of  law,  or,  in  other  words,  to  apply  foreign  laws. 
That  this  is  so  may  be  seen  from  an  examination  of  the  only 
courses  which,  when  a  case  involving  any  foreign  element  calls 
for  decision,  are,  even  conceivably,  open  to  the  Courts  of  any 
country  forming  part  of  the  society  of  civilized  nations. 

The  necessity  for  choosing  between  the  application  of 
different  laws  might  conceivably  be  avoided  by  rigid  adherence 
to  one  of  two  principles. 

The  Courts  of  any  country,  e.  g.,  of  England,  might,  on  the 
one  hand,  decline  to  give  any  decision  on  cases  involving  any  for- 
eign element,  /.  ^.,  cases  either  to  which  a  foreigner  was  a  party, 
or  which  were  connected  with  any  transaction  taking  place  wholly, 
or  in  part,  beyond  the  limits  of  England. 

-  No  need  for  a  choice  of  law  would  then  arise,  for  the  Courts 
would  in  effect  decline  to  decide  any  question  not  clearly  governed 
by  the  territorial  law  of  England.  This  course  of  action  would, 
however,  exclude  Englishmen  no  less  than  foreigners  from  re- 
course to  English  tribunals.  For  an  Englishman  who  had  entered 
into  a  contract  with  a  Scotchman  at  Edinburgh,  or  with  a  French- 
man at  Paris,  would,  if  the  principle  suggested  were  rigidly  car- 
ried out,  be  unable  to  bring  an  action  in  the  English  Courts  for  a 
breach  of  the  contract.  To  which  it  may  be  added  that,  were  the 
same  principle  adopted  by  the  Courts  of  other  countries,  neither 
party  to  such  a  contract  would  have  any  remedy  anywhere  for  its 
breach. 

The  English  Courts  might,  on  the  other  hand,  determine  to 
decide  every  matter  brought  before  them,  whatever  the  cause  of 
action  and  wherever  it  arose,  solely  with  reference  to  the  local 


NATURE    OF    THE    SUBJECT.  9 

law  of  England,  and  hence  determine  the  effect  of  things  done 
in  Scotland  or  in  France,  exactly  as  they  would  do  if  the  trans- 
actions had  taken  place  hetween  Englishmen  in  England. 

Difficulties  about  the  choice  of  law  would,  by  the  adoption  of 
this  principle,  be  undoubtedly  removed,  since  the  sole  rule  of  selec- 
tion would  be,  that  the  territorial  law  of  England  must  in  all  cases 
be  selected,  or,  in  other  words,  that  there  must  be  no  choice  at  all. 
Gross  injustice  would,  however,  inevitably  result  as  well  to  Eng- 
lishmen as  to  foreigners.  The  object  of  a  legal  decision  or  judg- 
ment is  to  enforce  existing  rights,  or  give  compensation  for  the 
breach  thereof,  and  it  is  not  the  object  of  a  legal  decision  or  judg- 
ment to  create  new  rights,  except  in  so  far  as  such  creation  may 
be  necessary  for  the  enforcement  or  protection  of  rights  already 
in  existence.  But  to  determine  the  legal  effects  of  acts  done  in 
Scotland  or  in  France,  e.  g.,  of  a  contract  made  between  Scotch- 
men in  Edinburgh,  solely  with  reference  to  the  local  law  of  Eng- 
land, would  be  to  confer  upon  one  or  other  of  the  parties,  or  per- 
haps upon  both,  new  rights  quite  different  from  those  acquired 
under  the  agreement,  or,  in  other  words,  to  fail  in  the  very  object 
which  it  is  sought  to  attain  by  means  of  a  judgment.  That  this 
is  so  becomes  even  more  manifest  if  we  place  before  our  minds  a 
case  of  which  the  foreign  element  consists  in  the  fact  that  two 
persons  have  intended  in  some  transaction  to  regulate  their  rights 
by  reference  to  a  foreign  law.  A  and  X,  Englishmen,  living  in 
Ensrland.  agree  in  London  that  certain  property  shall  be  settled, 
as  far  as  English  law  allows,  in  accordance  with  the  rules  of 
French  law.  If  in  interpreting  the  settlement  an  English  judge 
Avere  to  decline  to  take  any  notice  of  the  law  of  France,  he  would 
clearly  fail  in  carrying  out  the  intention  of  the  parties,  or,  in  other 
words,  would  fail  in  ensuring  to  either  of  them  his  rights  under 
the  settlement. 

If;  therefore,  it  is  impossible  for  the  Courts  of  any  country, 
without  injustice  and  damage  to  natives,  no  less  than  to  foreign- 
ers, either  to  decline  all  jurisdiction  in  respect  of  foreign  transac- 
tions, or  to  apply  to  such  transactions  no  rules  except  those  of  the 
local  law,  a  consequence  follows  which  has  hardly  been  sufficiently 
noted.  It  is  this :  that  the  Courts  of  every  civilized  country  are 
constrained,  not  only  by  logical,  but  by  practical  necessity,  to  con- 
cern themselves  with  the  choice  of  law,  and  must  occasionally  give 
extra-territorial  effect  now  to  their  own  local  law,  now  to  the  law 
of  some  foreign  state. 


10  PRIVATE     INTERNATIONAL    LAW. 

Is,  or  is  not  the  enforcement  of  foreign  law  a  matter  of  "com- 
ity"? This  is  an  inquiry  which  has  greatly  exercised  the  minds 
of  jurists.  We  can  now  see  that  the  disputes  to  which  it  has 
given  rise  are  little  better  than  examples  of  idle  logomachy.  If 
the  assertion  that  the  recognition  or  enforcement  of  foreign  law 
depends  upon  comity  means  only  that  the  law  of  no  country  can 
have  effect  as  law  beyond  the  territory  of  the  sovereign  by  whom 
it  was  imposed,  unless  by  permission  of  the  state  where  it  is 
allowed  to  operate,  the  statement  expresses,  though  obscurely,  a 
real  and  important  fact.  If,  on  the  other  hand,  the  assertion  that 
the  recognition  or  enforcement  of  foreign  laws  depends  upon 
comity  is  meant  to  imply  that,  to  take  a  concrete  case,  when  Eng- 
lish judges  apply  French  law,  they  do  so  out  of  courtesy  to  the 
French  Republic,  then  the  term  comity  is  used  to  cover  a  view 
which,  if  really  held  by  any  serious  thinker,  affords  a  singular 
specimen  of  confusion  of  thought  produced  by  laxity  of  language. 
The  application  of  foreign  law  is  not  a  matter  of  caprice  or  option,, 
it  does  not  arise  from  the  desire  of  the  sovereign  of  England,  or 
of  any  other  sovereign,  to  show  courtesy  to  other  states.  It  flows 
from  the  impossibility  of  otherwise  determining  whole  classes  of 
cases  without  gross  inconvenience  and  injustice  to  litigants, 
whether  natives  or  foreigners.^  It  were  well  too  in  this  matter 
to  give  heed  to  two  observations.  The  first  is  that  the  Courts, 
e.  g.,  of  England,  never  in  strictness  enforce  foreign  law ;  when 
they  are  said  to  do  so,  they  enforce  not  foreign  laws,  but  rights 

'"In  the  silence  of  any  positive  rule,  affirming,  or  denying,  or  restrain- 
ing the  operation  of  foreign  laws.  Courts  of  justice  presume  the  tacit 
adoption  of  them  by  their  own  government,  unless  they  are  repugnant  to 
its  policy  or  prejudicial  to  its  interests.  It  is  not  the  comity  of  the  Courts,. 
but  the  comity  of  the  nation  [or  state]  which  is  administered,  and  ascer- 
tained in  the  same  way,  and  guided  by  the  same  reasoning  by  which  all 
other  principles  of  municipal  law  are  ascertained  and  guided."  Bank  of 
Augusta  V.  Earle,  13  Pet.  ((/.  S.)  589.     (1839) ;  Story  Conflict  of  Laws,  $7- 

Mr.  Justice  Gray  in  the  case  of  Hilton  v.  Guyot,  159  U.  S.  113,  16  S.  C. 
R.  139,  held  as  follows :  "No  law  has  any  efl'ect,  of  its  own  force,  beyond 
the  limits  of  the  sovereignty  from  which  its  authority  is  derived.  The 
extent  to  which  the  law  of  one  nation,  as  put  in  force  within  its  territory, 
whether  by  executive  order,  by  legislative  act,  or  by  judicial  decree,  shall 
be  allowed  to  operate  within  the  dominion  of  another  nation,  depends  upon 
what  our  greatest  jurists  have  been  content  to  call  "the  comity  of  nations," 
although  the  phrase  has  been  often  criticised,  no  satisfactory  substitute 
has  been  suggested. 

"Comity,"  in  the  legal  sense,  is  neither  a  matter  of  absolute  obligation, 
on  the  one  hand,  nor  of  mere  courtesy  and  good  will,  upon  the  other. 
But  it  is  the  recognition  which  one  nation  allows  within  its  territory  tO' 
the  legislative,  executive  or  judicial  acts  of  another  nation,  having  due 
regard  both  to  international  duty  and  convenience,  and  to  the  rights  of  its 
own  citizens  or  of  other  persons  who  are  under  the  protection  of  its  laws." 


NATURE    OF    THE    SUBJECT.  11 

acquired  under  foreign  laws.  The  second  observation  is,  that 
disputes  about  the  effect  of  comity^ — and  the  remark  apphes  to 
other  controversies  about  the  conflict  of  laws — have  been  confused 
by  mixing  together  the  question  what,  on  a  given  subject,  is  the 
rule,  or,  in  other  words,  the  law  which  will  be  enforced  by  the 
judges,  with  the  different  inquiry,  what  are  the  motives  which 
have  led  judges  or  legislators  to  adopt  a  particular  rule  as  law. 
Assume,  for  the  sake  of  argument,  the  truth  of  the  doctrine  that 
the  enforcement  of  foreign  laws  depends  upon  comity.  This 
dogma  throws  no  light  whatever  on  the  nature  of  the  rules  up- 
held by  English  or  other  Courts  as  to  the  enforcement  of  foreign 
laws.  To  know,  for  example,  that  the  Courts  are  influenced  by 
considerations  of  comity  is  no  guide  to  any  one  who  attempts  to 
answer  the  inquiry  whether  the  tribunals  of  a  given  country 
accept  "domicil,"  as  do  English  Courts,  or  "nationality,"  as  do 
Italian  Courts,  as  determining  the  law  which  affects  the  validity 
of  a  will. 

Similarity  of  Rules  as  to  the  Choice  of  L&w.— Thirdly. 
Though  the  rules  as  to  extra-territorial  effect  of  law  enforced 
by  our  Courts  are  part  of  the  law  of  England,  it  should  be  noted 
that  the  law  of  every  other  civilized  country,  e.  g.,  of  France,  of 
Italy,  or  of  Germany,  contains  rules  for  the  choice  of  law,  not 
indeed  identical  with,  but  very  similar  to,  the  rules  for  the  same 
purpose  to  be  found  in  the  law  of  England. 

That  this  should  be  so  is  natural.  In  any  given  case  the  laws 
among  which  a  choice  may  rationally  be  made  are  limited  in  num- 
ber. The  selection  of  one  or  more  of  these  laws  is  not  a  matter 
of  caprice,  but  depends  upon  more  or  less  definite  reasons  which 
are  likely  to  influence  all  Courts  and  legislators.  The  grounds, 
for  example,  which  induce  the  Courts  of  England  to  determine 
the  formal  validity  of  a  contract,  by  the  law  of  the  place  where  it 
is  made,  are  likely  to  weigh  with  the  Courts  of  France  or  of  Ger- 
many. There  exists,  moreover,  a  palpal)le  convenience  in  the 
adoption  by  different  countries  of  the  same  principle  for  the  choice 
of  law.  Hence  the  mere  fact  that  a  particular  rule  for  the  selec- 
tion of  law  has  been  followed  by  the  French  and  American  Courts 
is  a  valid  though  not  absolutely  decisive  reason  in  favor  of  its 
being  adopted  by  English  Courts ;  and  an  appreciation  of  the  ad- 
vantages to  be  derived  from  uniformity  has  undoubtedly  influ- 
enced both  Courts  and  legislatures,  when  called  upon  to  determine 
in  a  given  class  of  cases  what  should  be  the  rule  as  to  the  extra- 
territorial effect  of  law.     Thus  has  come  into  existence  a  bodv  of 


12  PRIVATE    INTERNATIONAL    LAW. 

rules  which,  though  in  different  countries  they  exist  as  laws  only 
by  virtue  of  the  law  of  each  particular  country,  and  though  they 
are  by  no  means  everywhere  identical,  exhibit  wherever  they  exist 
marked  features  of  similarity.  This  likeness  is  increased  by  the 
fact  that  the  object  aimed  at  by  the  Courts  of  different  countries, 
in  the  adoption  of  rules  as  to  the  extra-territorial  effect  of  law, 
is  everywhere  in  substance  one  and  the  same.  This  aim  is,  in  the 
main,  to  secure  the  extra-territorial  effect  of  rights.  All,  or 
nearly  all,  the  rules  as  to  the  choice  of  law,  which  are  adopted  by 
different  civilized  countries,  are  provisions  for  applying  the  prin- 
ciple that  rights  duly  acquired  under  the  law  of  one  country  shall 
be  recognized  in  every  country.  Thus  the  law  of  England  and  the 
law  of  France  seek  in  this  respect  the  same  object,  viz.,  the  secur- 
ing that  the  rights  which  a  man  has  attained  by  marriage,  by 
purchase,  or  otherwise,  e.  g.,  in  Italy,  shall  be  enforceable  and  en- 
joyable by  him  in  England  or  France,  and,  conversely,  that  the 
rights  which  he  has  acquired  in  England  may  be  enforceable  and 
enjoyable  by  him  in  Italy.  This  community  of  the  aim,  pursued 
by  the  Courts  and  legislatures  of  different  countries,  lies  at  the 
very  foundation  of  our  subject.  It  is  of  itself  almost  enough  to 
explain  the  great  similarity  between  the  rules  as  to  the  choice  of 
law  adopted  by  different  countries. 

Tarious  Names  of  the  f^\ih}ect. —Fourthly.  The  depart- 
ment of  law,  whereof  we  have  been  considering  the  nature,  has 
been  called  by  various  names,  none  of  which  are  free  from 
objection. 

By  many  American  writers,  and  notably  by  Story,  it  has  been 
designated  as  the  "conflict  of  laws."  The  apparent  appropriate- 
ness of  the  name  may  be  best  seen  from  an  example  of  the  kind 
of  case  in  which  a  "conflict"  is  supposed  to  arise.  H  and  JV,  Por- 
tuguese subjects,  are  first  cousins.  Ey  the  law  of  Portugal  they 
are  legally  incapable  of  intermarriage.  They  come  to  England  and 
there  marry  each  other  in  accordance  with  the  formalities  required 
by  the  English  Marriage  Acts.  Our  Courts  are  called  upon  to 
pronounce  upon  the  validity  of  the  marriage.  If  the  law  of 
England  be  the  test  the  mariage  is  valid ;  if  the  law  of  Portugal 
be  the  test  the  marriage  is  invalid.  The  question  at  issue,  it  may 
be  said,  is,  whether  the  law  of  England  or  the  law  of  Portugal 
is  to  prevail.  Here  we  have  a  conflict,  and  the  branch  of  law 
which  contains  rules  for  determining  it  may  be  said  to  deal  with 
the  conflict  of  laws,  and  be  for  brevity's  sake  called  by  that  tide. 

The  defect,  however,  of  the  name  is  that  the  supposed  "con- 


NATURE    OF    THE    SUBJECT.  IS 

flict"  is  fictitious  and  never  really  takes  place.  If  English  tri- 
bunals decide  the  matter  in  hand,  with  reference  to  the  law  of 
Portus^al,  they  take  this  course  not  because  Portuguese  law  van- 
quishes English  law,  but  because  it  is  a  principle  of  the  law  of 
England  that,  under  certain  circumsiances,  marriages  between 
Portuguese  subjects  shall  depend  for  their  validity  on  conformity 
with  the  law  of  Portugal.  Any  such  expression,  moreover,  as 
"conflict,"  or  "collision,"  of  laws,  has  the  further  radical  defect 
of  concealing  from  view  the  circumstance  that  the  question  by 
the  law  of  what  country  a  given  transaction  shall  be  governed,  is 
often  a  matter  too  plain  to  admit  of  doubt.  No  judge  probably 
ever  doubted  that  the  validity  of  a  contract  for  the  purchase  and 
sale  of  goods  between  French  subjects  made  at  Paris,  and  per- 
formed, or  intended  to  be  performed,  in  France,  depends  upon  the 
rules  of  French  law.  The  term  conflict  of  laws  has  been  defended 
on  the  ground  of  its  applicability,  not  to  any  collision  between  the 
laws  themselves,  but  to  a  conflict  in  the  mind  of  a  judge  on  the 
question  which  of  two  systems  of  law  should  govern  a  given  case. 
This  suggestion  gives,  however,  a  forced  and  new  sense  to  a  re- 
ceived expression.  It  also  amounts  simply  to  a  plea  that  the  term 
conflict  of  laws  may  be  used  as  an  inaccurate  equivalent  for  the 
far  less  objectionable  phrase  choice  of  law. 

Modern  authors,  and  notably  Mr.  Westlake,  have  named  our 
subject  Private  International  Law. 

This  expression  is  handy  and  manageable.  It  brings  into 
light  the  great  and  mcreasing  harmony  between  the  rules  as  to- 
the  application  of  foreign  law  which  prevails  in  all  civilized  coun- 
tries, such  as  England.  France,  and  Italy.  The  tribunals  of  dif- 
ferent countries,  as  already  pointed  out,  follow  similar  principles 
in  determining  what  is  the  law  applicable  to  a  given  case,  and  aim 
at  the  same  result,  namely,  the  recognition  in  every  civilized  coun- 
try of  rights  acquired  under  the  law  of  any  other  country.  Hence 
an  action  brought  to  enforce  a  right  acquired  under  the  law  of 
one  country,  c.  g.,  of  France)  will  in  general  be  decided  in  the 
same  manner  in  whatever  country  it  be  maintained,  whether,  that 
is  to  say,  it  be  brought  in  the  Courts  of  England  or  of  Germany. 
On  this  fact  is  based  the  defence  of  the  name  Private  International 
Law.  The  rules,  it  may  further  be  said,  which  the  words  desig- 
nate, afifect  the  rights  of  individuals  as  against  one  another,  and 
therefore  belong  to  the  sphere  of  "private,"  not  of  public  law  ;  and 
these  rules,  as  they  constitute  a  body  of  principles  common  to  all 
civilized  countries,  may  be  rightly  termed  "international." 


14  PRIVATE    INTERNATIONAL    LAW. 

The  term,  however,  is  at  bottom  inaccurate.  The  words  pri- 
vate international  law  "should  mean,  in  accordance  with  that  use 
"of  the  word  'international'  which,  besides  being  well  established 
"in  ordinary  language,  is  both  scientifically  convenient  and  ety- 
^'mologically  correct,  'a  private  species  of  the  body  of  rules  which 
^'prevails  between  one  nation  and  another.'  Nothing  of  the  sort 
"is,  however,  intended ;  and  the  unfortunate  employment  of  the 
"phrase,  as  indicating  the  principles  which  govern  the  choice  of 
""the  system  of  private  law  applicable  to  a  given  class  of  facts,  has 
"led  to  endless  misconception  of  the  true  nature  of  this  depart- 
"ment  of  legal  science."  Nor  does  the  inaccuracy  of  the  term 
€nd  here.  It  confounds  two  classes  of  rules,  which  are  generically 
different  from  each  other.  The  principles  of  international  law, 
properly  so  called,  are  truly  "international"  because  they  prevail 
between  or  among  nations ;  but  they  are  not  in  the  proper  sense  of 
the  term  "laws,"  for  they  are  not  commands  proceeding  from  any 
sovereign.  On  the  other  hand,  the  principles  of  private  interna- 
tional law  are  "laws"  in  the  strictest  sense  of  that  term,  for  they 
are  commands  proceeding  from  the  sovereign  of  a  given  state, 
€.  g.,  England  or  Italy,  in  which  they  prevail;  but  they  are  not 
"international,"  for  they  are  laws  which  determine  the  private 
rights  of  one  individual  as  against  another,  and  these  individuals 
may,  or  may  not,  belong  to  one  and  the  same  nation.  Authors,  in 
short,  who  like  Foelix  divide  international  law  into  public  inter- 
national law  and  private  international  law,  use  the  words  interna- 
tional and  law  in  each  of  these  expressions  in  a  different  sense. 
Such  ambiguity  of  language,  unless  fully  acknowledged,  must 
lead,  as  it  has  led,  to  confusion  of  thought.  Nor  is  much  gained 
by  such  an  amendment  of  terminology  as  is  achieved  by  a  transpo- 
sition of  words.  The  expression  "international  private  law"  is  no 
doubt  a  slight  improvement  on  private  international  law,  as  it 
points  out  that  the  rules  which  the  name  denotes  belong  to  the 
domain  of  private  law.  But  the  name,  improve  it  as  you  will,  has 
the  insuperable  fault  of  giving  to  the  adjective  international  a 
meaning  different  from  the  sense  in  which  it  is  generally  and  cor- 
rectly employed. 

Other  names  for  our  subject,  such  as  "comity,"  the  "local 
limits  of  law,"  "intermunicipal  law,"  and  the  like,  have  not  ob- 
tained sufficient  currency  to  require  elaborate  criticism.  Their 
fault  is,  that  either  they  are  too  vague  for  the  designation  of  the 
topic  to  which  they  are  applied,  or  else  they  suggest  notions  which 
are  inaccurate.  Thus  the  term  "comity,"  as  already  pointed  out, 
is  open  to  the  charge  of  implying  that  a  judge,  when  he  applies 


NATURE    OF    THE    SUBJECT.  15 

foreio:n  law  to  a  particular  case,  does  so  as  a  matter  of  caprice  or 
favour,  whilst  the  term  "intcrmunicipal  law"  can  be  accurately 
used  only  by  giving"  to  each  half  of  the  word  "interniunicipal"  a 
sense  which  both  is  unusual  and  also  demands  elaborate  explana- 
tion. A  more  accurate  description  of  our  topic  is  (it  is  submitted) 
"the  extra-territorial  effect  of  law,"  or  better,  Professor  Holland's 
phrase  "the  extra-territorial  recognition  of  rights."  But  such 
expressions  are  descriptions,  not  names.  A  writer,  therefore, 
called  upon  to  deal  with  our  topic  will  act  wisely  in  refusing  to  be 
tied  down  to  any  set  form  of  words.  He  will,  when  convenient, 
use  the  admittedly  inaccurate  terms,  conflict  of  laws,  or  private 
international  law.  But  he  will  himself  remember,  and  will  at- 
tempt to  impress  upon  his  readers,  that  these  names  are  nothing 
more  than  convenient  marks  by  which  to  denote  the  rules  main- 
tained by  the  Courts  of  a  given  country,  as  to  the  selection  of  the 
system  of  law  which  is  to  be  applied  to  the  decision  of  cases  that 
contain,  or  may  contain,  some  foreign  element,  and  also  the  rules 
maintained  by  the  Courts  of  a  given  country,  as  to  the  limits  of 
the  jurisdiction  to  be  exercised  by  its  own  Courts  as  a  whole,  or  by 
foreign  Courts. - 

■Private  International  Law  Defined  and  Distinguished. — "International 
law,  in  its  widest  and  most  comprehensive  sense — including  not  only  ques- 
tions of  right  between  nations,  governed  by  what  has  been  appropriately 
called  the  law  of  nations ;  but  also  questions  arising  under  what  is  usually 
called  private  international  laz^',  or  the  conflict  of  la-u's,  and  concerning  the 
right«  of  persons  within  the  territory  and  dominion  of  one  nation,  by 
reason  of  acts,  private  or  public,  done  within  the  dominions  of  another 
nation — is  part  of  our  law,  and  must  be  ascertained  and  administered  by 
the  Courts  of  justice,  as  often  as  such  questions  are  presented  in  litigation 
between  man  and  man,  duly  submitted  to  their  determination."  Hilton  v. 
Guyot,  isg  U.  S.  113,  16  S.  C.  Rep.  139. 

Private  International  Law  differs  from  Public  International  Law  in 
three  particulars:  First — As  to  the  persons  on  zclioin  it  operates.  As  for 
instance,  private  individuals  are  the  parties  in  this  branch  of  the  law, 
while  public  international  law  deals  with  nations.  Second — As  to  the 
transaction  itself.  Private  International  law  assumes  control  of  transac- 
tions private  in  their  nature,  as  for  instance,  a  contract  between  two  indi- 
viduals, while  public  international  law  recognizes  in  general  only  those 
questions  in  which  sovereign  states  are  interested,  as  for  instance,  ques- 
tions of  peace,  war,  blockade,  neutrality,  right  of  search,  etc.  Third — As 
to  the  remedy.  A  question  of  private  international  law  is  decided  by  the 
Courts  of  the  country  or  state  in  wln'ch  the  question  comes  up  for  adjudi- 
cation. A  question  of  public  international  law  can  be  settled  only  through 
diplomatic  channels  or  war.  There  is  no  independent  judicial  tribunal  to 
decide  questions  of  public  international  law.  See  Minor  Conflict  of  Lazvs, 
Sec.  2. 

Controversies  between  states  of  the  Union  come  within  the  jurisdic- 
tion of  the  Supreme  Court  of  the  United  States,  f/.  S.  Const..  Art.  3,  Sec. 
2. 


CHAPTER  II. 

TERRITORIAL  JURISDICTION    OF   NATIONS. 

REGINA  V.  KEYN,  1876. 
[13  Cox  C.  C.  403;  2  Exch.  Div.  63.] 

1.  Territorial  Limits  of  the  United       5.  Criminal   Prosecution   for  Acts 

States.  Committed  Without  the  State. 

2.  State  Limits.  6.  Civil  Actions  for  Acts  Without 

3.  County  Limits.  the  State. 

4.  Jurisdiction   over  Ships   on   the       7.  Laws  of  Newly  Acquired  Terri- 

High  Seas.  tory. 

CocKBURN,  C.  J. — The  defendant  has  been  convicted  of  the 
ofifence  of  manslaughter  on  the  high  seas,  on  a  trial  had  at  the 
Central  Criminal  Court,  under  the  statute  4  and  5  Will.  4,  c.  36, 
s.  22,  which  empowers  the  judges  sitting  there  to  hear  and 
determine  offences  "committed  on  the  high  seas  and  other  places 
witliin  the  jurisdiction  of  the  Admiralty  of  England."  The  facts 
were  admittedly  such  as  to  warrant  the  conviction,  if  there  was 
jurisdiction  to  try  the  defendant  as  amenable  to  English  law. 
Being  in  command  of  a  steamship,  the  Franconia,  and  having 
occasion  to  pass  the  Strathclydc,  a  British  ship,  the  defendant 
brough  his  ship  unnecessarily  close  to  the  latter,  and  then,  by  neg- 
ligence in  steering,  ran  into  the  SfrafJiclydc,  and  broke  a  hole  in 
her,  in  consequence  of  which  she  filled  with  water  and  sank,  when 
the  deceased,  whose  death  the  accused  is  charged  with  having 
occasioned,  being  on  board  the  Strathclydc,  was  drowned.  That 
the  negligence  of  which  the  accused  was  thus  guilty,  having 
resulted  in  the  death  of  the  deceased,  amounts  according  to  Eng- 
lish law  to  manslaughter  can  admit  of  no  doubt.  The  question  is^ 
whether  the  accused  is  amenable  to  our  law,  and  whether  there 
was  jurisdiction  to  try  him?  The  legality  of  the  conviction  is 
contested,  on  the  ground  that  the  accused  is  a  foreigner ;  that  the 
Franconia,  the  ship  he  commanded,  was  a  foreign  vessel,  sailing' 
from  a  foreign  port,  bound  on  a  foreign  voyage ;  that  the  alleged 
offence  was  committed  on  the  high  seas.  Under  these  circum- 
stances, it  is  contended,  that  the  accused,  though  he  may  be  amen- 
able to  the  law  of  his  own  country,  is  not  capable  of  being  tried 


TERRITORIAL  JURISDICTION    OF    NATIONS.  17 

and  punished  by  the  law  of  Enc^land.  Tlie  facts  on  which  this 
defence  is  based  are  not  capable  of  beinp^  disputed  ;  but  a  twofold 
answer  is  given  on  the  part  of  the  prosecution: — ist.  That, 
although  the  occurrence  on  which  the  charge  is  founded,  took 
place  on  the  high  seas  in  this  sense,  that  the  place  in  which  it  hap- 
pened was  not  within  the  body  of  a  county,  it  occurred  within 
three  miles  of  the  English  coast ;  that,  by  the  law  of  nations,  the 
sea,  for  a  space  of  three  miles  from  the  coast,  is  part  of  the  terri- 
tory of  the  country  to  which  the  coast  belongs ;  that,  consequently, 
the  Franconia,  at  the  time  the  offence  was  committed,  was  in 
English  waters,  and  those  on  board  were  therefore  subject  to 
English  law.  2ndly.  That,  although  the  negligence  of  which  the 
accused  was  guilty  occurred  on  board  a  foreign  vessel,  the  death 
occasioned  by  such  negligence  took  place  on  board  a  British  ves- 
sel ;  and  that  as  a  British  vessel  is  in  point  of  law  to  be  considered 
British  territory,  the  offence  having  been  consummated  bv  the 
death  of  the  deceased  in  a  British  ship,  must  be  considered  as 
having  been  committed  on  British  territory.  I  reserve  for  future 
consideration  the  arguments  thus  advanced  on  the  part  of  the 
Crown,  and  proceed,  in  the  first  instance,  to  consider  the  general 
question — how  far,  independently  of  them,  the  accused,  having 
been  at  the  time  the  offence  was  committed  a  foreign  subject,  in 
a  foreign  ship,  on  a  foreign  voyage,  on  the  high  seas,  is  amenable 
to  the  law  of  England.  Now,  no  proposition  of  law  can  be  more 
incontestable  or  more  universally  admitted  than  that,  according 
to  the  general  law  of  nations,  a  foreigner  cannot  be  held  crim- 
inally responsible  to  the  law  of  a  nation  not  his  own,  for  acts  done 
beyond  the  limits  of  its  territory : — 

No  sovereignly  (says  Story,  Conflict  of  Laws,  s.  539)  can  extend  its 
process  beyond  its  own  territorial  limits,  to  subject  either  persons  or 
property  to  its  judicial  decisions.  F.very  exertion  of  authority  of  this  sort 
beyond  this  limit  is  a  mere  nullity,  and  incapable  of  binding  such  persons 
or  property  in  any  other  tribunals. 

The  power  of  this  country  (says  Dr.  Lushington,  in  the  case  of  The 
ZoUvcrein,  i  Sw.  Adm.  Rep.  q6)  is  to  legislate  for  its  subjects  all  the 
world  over,  and  as  to  foreigners  within  its  jurisdiction,  but  no  further. 

This  rule  must,  however,  be  taken  subject  to  this  qualification, 
namely,  that  if  the  legislature  of  a  particular  country  should 
think  fit  by  express  enactment  to  render  foreigners  subject  to  its 
law  with  reference  to  offences  committed  beyond  the  limits  of  its 
territory,  it  would  be  incumbent  on  the  Courts  of  such  country  to 
give  effect  to  such  enactment,  leaving  it  to  the  state  to  settle  the 
question  of  international  law  with  the  governments  of  other 
2 


18  PRIVATE     INTERNATIONAL    LAW. 

nations.  The  question  of  express  legislation  will  be  dealt  with 
hereafter.  For  the  present  I  am  dealing  with  the  subject  with 
reference  to  the  general  law  alone.  To  the  general  rule  to  which 
I  have  referred  there  is  one  exception — that  of  a  foreigner  on 
board  the  ship  of  another  nation.  But  the  exception  is  apparent 
rather  than  real ;  for  by  the  received  law  of  every  nation  a  ship 
on  the  high  seas  carries  its  nationality  and  the  law  of  its  own 
nation  with  it,  and  in  this  respect  has  been  likened  to  a  floating 
portion  of  the  national  territory.  All  on  board,  therefore,  whether 
subjects  or  foreigners,  are  bound  to  obey  the  law  of  the  country 
to  which  the  ship  belongs,  as  though  they  were  actually  on  its 
territory  on  land,  and  are  liable  to  the  penalties  of  that  law  for 
any  ofifence  committed  against  it.  But  they  are  liable  to  that  law 
alone.  On  board  a  foreign  ship  on  the  high  seas,  the  foreigner  is 
liable  to  the  law  of  the  foreign  ship  only.  It  is  only  when  a 
foreign  ship  comes  into  the  ports  or  waters  of  another  state  that 
the  ship  and  those  on  board  become  subject  to  the  local  law. 
These  are  the  established  rules  of  the  law  of  nations.  They  have 
been  adopted  into  our  own  municipal  law,  and  must  be  taken  to 
form  part  of  it.  According  to  the  general  law,  therefore,  a 
foreigner  who  is  not  residing  permanently  or  temporarily  in 
British  territory,  or  on  board  a  British  ship,  cannot  be  held 
responsible  for  an  infraction  of  the  law  of  this  country.  Unless, 
therefore,  the  accused  Keyn,  at  the  time  the  offence  of  which  he 
has  been  convicted  was  committed,  was  on  British  territory,  he 
could  not  be  properly  brought  to  trial  under  English  law,  in  the 
absence  of  express  legislation.  Moreover,  while  the  accused  is 
thus  on  general  principles  exempt  from  being  subject  to  our 
criminal  law  in  respect  of  an  offence  committed  on  the  high  seas, 
if  we  proceed  to  look  at  the  matter  in  a  more  technical  point  of 
view,  with  reference  to  jurisdiction,  equal  difficulties  will  be 
found  to  stand  in  the  way  of  the  prosecution.  The  indictment  on 
which  the  defendant  has  been  convicted  alleges  the  offence  to 
have  been  committed  on  the  high  seas,  and  it  is  admitted  that 
the  place  at  which  it  occurred  cannot  in  any  sense  be  said  to  have 
been  within  the  body  of  a  county.  The  case,  therefore,  if  the 
indictment  can  be  maintained,  must  necessarily  fall  within  what 
would  formerly  have  been  the  jurisdiction  of  the  Admiral — a 
jurisdiction  now  transferred,  but  transferred  unaltered,  to  the 
Common  Law  Courts.  It  becomes,  therefore,  necessary  to  inquire 
more  particularly  into  the  character  and  extent  of  the  Admiralty 
jurisdiction.     From  the  earliest  period  of  our  legal  history,  the 


TERRITORIAL  JURISDICTION    OF    NATIONS.  19 

cognizance  of  offences  committed  on  the  hin^h  seas  had  been  left 
to  the  jurisdiction  of  the  Admiral.     And  the  reason  is  ol>vious. 
By  the  old  common  law  of  En.2:land,  every  offence  was  triable  in 
the  county  only  in  which   it  had  been  committed,  as  from  that 
county  alone  the  "pais,"  as  it  was  termed — in  other  words,  the 
jurors  by  whom  the  fact  was  to  be  ascertained — could  come.     But 
only  so  much  of  the  land  of  the  outer  coast  as  was  uncovered  by 
the  sea  was  held  to  be  within  the  body  of  the  adjoining  county. 
If  an  offence  was  committed  on  the  high  sea,  in  a  bay,  gulf,  or 
estuary,  inter  fauces  tcrroc,  the  common  law  could  deal  with  it, 
because  the  parts  of  the  sea  so  circumstanced  were  held  to  be 
within  the  body  of  the  adjacent  county  or  counties;  but,  along 
the  coast,  on  the  external  sea.  the  jurisdiction  of  the  common  law 
extended   no   further   than   to   low-water  mark.     As   from   time 
to  time,  when  ships  began  to  navigate  the  sea,  offences  would  be 
committed  on  it  which  required  to  be  repressed  and  punished, 
but  the  common  law  jurisdiction  and  procedure  v^as  inapplicable 
to  such  offences,  as  not  having  been  committed  within  the  boun- 
dary of  any  county,  the  authority  of  the  Crown  in  the  administra- 
tion of  justice  in  respect  of  such  crimes  was  left  to  the  Admiral, 
as  exercising  the  authority  of  the  sovereign  upon  the  seas.     Even 
the  office  of  coroner  could  not,  for  the  like  reason,  be  executed 
by  the  coroner  of  a  county  in  respect  of  matters  arising  on  the 
sea.     An  inquest  could  not  be  held  by  one  of  these  officers  on  a 
body  found  on  the  sea.    Such  jurisdiction  could  only  be  exercised 
by  a  coroner  appointed   by  the   Admiral.     A   similar   difficulty^, 
existed  as  to  wrongs  done  on  the  sea,  and  in  respect  of  which  the 
party  wronged  was  entitled  to  redress  by  civil  action,   till   thel 
anomalous  device  of  a  fictitious  venue,  within  the  jurisdiction  of] 
the  common-law  courts,  and  which  was  not  allowed  to  be  dis-| 
puted,  was  resorted  to,  and  so  the  power  of  trying  such  actions) 
was  assumed. 

Upon  this  footing  the  law  has  remained  ever  since.  What- 
ever of  the  sea  lies  within  the  body  of  a  county  is  within  the  juris- 
d^tion  of  the  common  law.  Whatever  does  not.  belonged  formerly 
to  that  of  the  Admiralty,  and  now  belongs  to  the  courts  to  which 
the  jurisdiction  of  the  admiral  has  been  transferred  by  statute; 
while  in  the  estuaries  or  mouths  of  great  rivers,  below  the  bridges, 
in  the  matter  of  murder  and  mayhem,  the  jurisdiction  is  concur- 
rent. On  the  shore  of  the  outer  sea  the  body  of  the  county 
^extends  so  far  as  the  lantl  is  uncovered  by  water.  And  so  rigor- 
ous has  been  the  line  of  demarcation  between  the  two  jurisdic- 


20  PRIVATE    INTERNATIONAL    LAW. 

tions,  that,  as  regards  the  shore  between  high  and  low-water  mark, 
the  jurisdiction  has  been  divided  between  the  Admiralty  and  the 
common  law  according  to  the  state  of  the  tide.  Such  was  the 
law  in  the  time  of  Lord  Coke ;  and  such  it  is  still.  We  must, 
therefore,  deal  with  this  case  as  one  which  would  have  been  underi 
tlie  ancient  jurisdiction  of  the  Admiral.  Biif  the  jurisdiction  of  1 
the  Admiral,  though  largely  asserted  in  theory,  was  never,  so  far 
as  I  am  aware — except  in  the  case  of  piracy,  which,  as  the  pirate 
was  considered  the  comuuinis  hostis  of  mankind,  was  triable 
anywhere — exercised,  or  attempted  to  be  exercised,  over  other 
than  English  ships.  No  instance  of  any  such  exercise,  or 
attempted  exercise,  after  every  possible  search  has  been  made,  has 
been  brought  to  our  notice.  Nor,  for  the  reason  already  given, 
could  such  jurisdiction  be  so  exercised  consistently  with  legal 
principle. 

R.  V.  Scrva  and  others  (i  Den.  C.  C.  104;  i  Cox  C.  C.  292), 
R.  V.  Leivis  (i  Dear.  &  Bell,  182;  7  Cox.  C.  C.  2yj). 

In  Palmer's  Case  (3  Wheat.  610)  ;  and  in  the  cases  of  United 
States  V.  Hoiuard  (3  Wash.  C.  C.  R.  334)  ;  United  States  v.  Klin- 
tock  (5  Wheat.  144)  ;  United  States  v.  Kessler  (i  Baldw.  15)  ; 
and  United  States  v.  Holmes. 

These  decisions  are  conclusive  in  favour  of  the  accused  in  the 
present  case,  unless  the  contention,  on  the  part  of  the  Crown, 
either  that  the  place  at  which  the  occurrence  out  of  which  the 
present  inquiry  has  arisen,  was,  though  on  the  high  seas,  yet 
within  British  waters,  by  reason  of  its  having  been  within  three 
miles  of  the  English  shore ;  or  that  the  death  of  the  deceased 
having  occurred  in  a  British  ship,  the  offence  must  be  taken  to 
have  been  there  committed,  so  as  in  either  case  to  give  jurisdiction 
to  the  Admiralty,  or  the  Courts  substituted  for  it,  shall  prevail. 
These  questions  it  becomes,  therefore,  necessary  carefully  to 
consider.  On  entering  on  the  first  of  these  questions  it  is  material 
to  have  a  clear  conception  of  what  the  matter  in  controversy  is. 
The  jurisdiction  of  the  Admiral,  so  largely  asserted  in  theory  in 
ancient  times,  being  abandoned  as  untenable,  it  becomes  necessary 
for"  the  counsel  for  the  Crown  to  have  recourse  to  a  doctrine  of 
comparatively  modern  growth,  namely,  that  a  belt  of  sea,  to  a  dis- 
tance of  three  miles  from  the  coast,  though  so  far  a  portion  of  the 
high  seas  as  to  be  still  within  the  jurisdiction  of  the  Admiral,  is 
part  of  the  territory  of  the  realm,  so  as  to  make  a  foreigner  in  a 
foreign  ship,  within  such  belt,  though  on  a  voyage  to  a  foreign 
port,  subject  to  our  law,  though  he  would  not  be  so  on  the  high 


TERRITORIAL  JURISDICTION    OF    NATIONS. 


21 


sea  beyond  such  limit.  It  is  necessary  to  keep  the  old  assertion  of 
jurisdiction  and  that  of  to-day  essentially  distinct,  and  it  should 
be  borne  in  mind  that  it  is  because  all  i)roof  of  the  actual  exer- 
cise of  any  jurisdiction  by  the  Admiral  over  foreigners  in  the 
narrow  seas  totally  fails,  that  it  becomes  necessary  to  give  to  the 
three-mile  zone  the  character  of  territory  in  order  to  make  good 
the  assertion  of  jurisdiction  over  the  foreigner  therein.  Now,  it 
may  be  asserted  withdut  fear  of  contradiction  that  the  position 
that  the  sea  within  a  belt  or  zone  of  three  miles  from  the  shore,  as 
distinguished  from  the  rest  of  the  open  sea,  forms  part  of  the 
realm  or  territory  of  the  Crown  is  a  doctrine  unknown  to  the  1 
ancient  law  of  England,  and  which  has  never  yet  received  the 
sanction  of  an  English  criminal  court  of  justice.  It  is  true  that! 
from  an  early  period  the  kings  of  England,  possessing  more  ships 
than  their  opposite  neighbors,  and  being  thence  able  to  sweep 
the  Channel,  asserted  the  right  of  sovereignty  over  the  narrow 
seas,  as  appears  from  the  commissions  issued  in  the  fourteenth 
century,  of  which  examples  are  given  in  the  4th  Institute,  in  the 
chapter  on  the  Court  of  Admiralty,  and  others  are  to  be  found  in 
Selden's  "Mare  Clausum,"  book  2.  At  a  later  period,  still  more 
extravagant  pretensions  were  advanced.  Selden  does  not  scruple 
to  assert  the  sovereignty  of  the  King  of  England  over  the  sea  as 
far  as  the  shores  of  Norway,  in  which  he  is  upheld  by  Lord  Hale 
in  his  treatise  "De  jure  maris":  (Hargrave's  Law  Tracts,  p.  10.) 
^utthe  claim  to  such  sovereignty,  at  all  times  unfounded, 
2ias  long  since  been  abandoned.  No  one  would  now  dream  of 
asserting  that  the  sovereign  of  these  realms  has  any  greater  right 
over  the  surrounding  seas  than  the  sovereigns  on  the  opposite 
shores ;  or  that  it  is  the  especial  duty  and  privilege  of  the  Queen 
of  Great  Britain  to  keep  the  peace  in  these  seas ;  or  that  the  Court 
of  Admiralty  could  try  a  foreigner.jcommitted  in  a  foreign  vessel 
in  all  parts  of  the  channel.  No  writer  of  our  day,  except  Mr. 
Chitty,  in  his  treatise  on  the  Prerogative,  has  asserted  the  ancient 
doctrine.  Blackstone,  in  his  chapter  on  the  Prerogative  in  the 
Commentaries,  while  he  asserts  that  the  narrow  seas  are  part  of 
the  realm,  puts  it  only  on  the  ground  that  the  jurisdiction  of  the 
Admiralty  extends  over  these  seas.  He  is  silent  as  to  any  juris- 
diction over  foreigners  within  them.  Th£_-Consensus  of  jurists  . 
which  has  been  so  much  insisted  on_  as  authority,  is  perfectly! 
unanimous  as  to  the  non-existence  of  any  such  jurisdiction/ 
Indeed,  it  is  because  this  claim  of  sovereignty  is  admitted  to  be 
untenable  that  it  has  been  found  necessary  to  resort  to  the  theory 


'«rv- 


^^<hcX^.<'Uj^     ^ 


(  fv- 


a^ 


l/\AJ>^^-\^ 


22  PRIVATE    INTERNATIONAL    LAW. 

of  the  three-miles  zone.  It  is  in  vain,  therefore,  that  the  ancient 
assertion  of  sovereignty  over  the  narrow  seas  is  invoked  to  give 
countenance  to  the  rule  now  sought  to  be  established,  of  juris- 
diction over  the  three-miles  zone.  If  this  rule  is  to  prevail,  it  must 
be  on  altogether  different  grounds.  To  invoke  as  its  foundation, 
or  in  its  support,  an  assertion  of  sovereignty  which,  for  all  prac- 
tical purposes,  is,  and  always  has  been,  idle  and  unfounded,  and 
the  invalidity  of  which  renders  it  necessary  to  have  recourse  to 
the  new  doctrine,  involves  an  inconsistency,  on  which  it  would  be 
superfluous  to  dwell.  I  must  confess  myself  unable  to  compre- 
hend how,  when  the  ancient  doctrine  as  to  sovereignty  over  the 
narrow  seas  is  adduced,  its  operation  can  be  confined  to  the  three- 
miles  zone.  If  the  argument  is  good  for  anything,  it  must  apply 
to  the  whole  of  the  surrounding  seas.  But  the  counsel  for  the 
Crown  evidently  shrank  from  applying  it  to  this  extent.  Such  a 
pretension  would  not  be  admitted  or  endured  by  foreign  nations. 
That  it  is  out  of  this  extravagant  assertion  of  sovereignty  that  the 
doctrine  of  the  three-mile  jurisdiction,  asserted  on  the  part  of  the 
Crown,  and  which,  the  older  claim  being  necessarily  abandoned, 
we  are  now  called  upon  to  consider,  has  sprung  up,  I  readily 
admit.  Let  me  endeavor  to  trace  its  origin  and  growth.  With 
the  celebrated  work  of  Grotius,  published  in  1609,  began  the  great 
contest  of  the  jurists  as  to  the  freedom  of  the  seas.  The  contro- 
versy ended,  as  controversies  often  do,  in  a  species  of  compromise. 
While  maintaining  the  freedom  of  the  seas,  Grotius,  in  his  work 
"De  Jure  Belli  et  Pacis,"  had  expressed  an  opinion  that,  while  no 
right  could  be  acquired  to  the  exclusive  possession  of  the  ocean, 
an  exclusive  right  or  jurisdiction  might  be  acquired  in  respect  of 
particular  portions  of  the  sea  adjoining  the  territory  of  individual 
States. 

There  can  be  no  doubt  that  the  suggestion  of  Bynkershoek, 
that  the  sea  surrounding  the  coast  to  the  extent  of  cannon-range 
should  be  treated  as  belonging  to  the  state  owning  the  coast,  has 
with  but  very  few  exceptions,  been  accepted  and  adopted  by  the 
publicists  who  have  followed  him  during  the  last  two  centuries. 
But  it  is  equally  clear  that,  in  the  practical  application  of  the  rule, 
in  respect  of  the  particular  distance,  as  also  in  the  still  more  essen- 
tial particular  of  the  character  and  degree  of  sovereignty  and 
dominion  to  be  exercised,  great  difference  of  opinion  and  uncer- 
tainty have  prevailed,  and  still  continue  to  exist.  As  regards  dis- 
tance, while  the  majority  of  authors  have  adhered  to  the  three- 
mile  zone,  others,  like  Mr.  Ortolan  and  Mr.  Halleck,  applying  with 


TERRITORIAL  JURISDICTION    OF    NATIONS.  23 

greater  consistency  tlie  principle  on  which  the  whole  doctrine 
rests,  insist  on  extending  the  distance  to  the  modern  range  of  can- 
non— in  other  words  doubling  it.  This  difference  of  opinion  may 
be  of  little  practical  importance  in  the  present  instance,  inasmuch 
as  the  place  at  which  the  offence  occurred  was  within  the  lesser 
distance ;  but  it  is,  nevertheless,  not  immaterial  as  showing  how 
unsettled  this  doctrine  still  is.  The  question  of  sovereignty,  on 
the  other  hand,  is  all-important.  One  set  of  writers,  as,  for 
instance,  M.  Hautefeuille,  ascribes  to  the  state  territorial  property 
and  sovereignty  over  the  three  miles  of  sea,  to  the  extent  of  the 
right  of  excluding  the  ships  of  all  other  nations,  even  for  the  pur- 
pose of  passage — a  doctrine  flowing  immediately  from  the  prin- 
ciple of  territorial  property,  but  which  is  too  monstrous  to  be 
admitted.  Another  set  concedes  territorial  property  and  sover- 
eignty, but  makes  it  subject  to  the  right  of  other  nations  to  use 
these  waters  for  the  purpose  of  navigation.  Others  again,  like 
M.  Ortolan  and  M.  Calvo,  deny  any  right  of  territorial  property, 
but  concede  "jurisdiction ;"  by  which  I  understand  the  power  of 
applying  the  law,  applicable  to  persons  on  the  land,  to  all  who 
are  within  the  territorial  water,  and  the  power  of  legislation  in 
respect  of  it,  so  as  to  bind  every  one  who  comes  within  the  jurisdic- 
tion, whether  subjects  or  foreigners.  Some,  like  M.  Ortolan, 
would  confine  this  jurisdiction  to  purposes  of  "safety  and  police" 
— by  which  I  should  be  disposed  to  understand  measures  for  the 
protection  of  the  territory,  and  for  the  regulation  of  the  naviga- 
tion, and  the  use  of  harbours  and  roadsteads,  and  the  maintenance 
of  order  among  the  shipping  therein,  rather  than  the  general  appli- 
cation of  the  criminal  law.  Other  authors,  for  instance,  Mr.  Man- 
ning, would  restrict  the  jurisdiction  to  certain  specified  purposes 
in  which  the  local  state  has  an  immediate  interest,  namely,  the 
protection  of  its  revenue  and  fisheries,  the  exacting  of  harbour 
and  light  dues,  and  the  protection  of  its  coasts  in  time  of  war. 
Some  of  these  authors,  for  instance,  Professor  Bluntschli,  make  a 
most  important  distinction  between  a  commorant  and  a  passing 
ship.  According  to  this  author,  while  the  commorant  ship  is  sub- 
ject to  the  general  law  of  the  local  State,  the  passing  ship  is  liable 
to  the  local  jurisdiction  only  in  matters  of  "military  and  police 
regulations,  made  for  the  safety  of  the  territory  and  population 
of  the  coast."  None  of  these  writers,  it  should  be  noted,  discuss 
the  question,  or  go  the  length  of  asserting  that  a  foreigner  in  a 
foreign  ship,  using  the  waters  in  question  for  the  purpose  of  navi- 
gation solely,  on  its  way  to  another  country,  is  liable  to  the  crim- 


24  PRIVATE    INTERNATIONAL    LAW. 

inal  law  of  the  adjoining  country  for  an  offence  committed  on 
board. 

Now,  when  it  is  remembered  that  it  is  mainly  on  the  state- 
ments and  authorities  of  these  writers,  and  to  opinions  founded  on 
them,  that  we  are  cal'ed  upon  to  hold  that  foreigners  on  the  so- 
called  territorial  sea  are  subject  to  the  general  law  of  this  country, 
the  discrepancy  of  opinion  which  I  have  been  pointing  out  becomes 
very  material.     Looking  to  this,  we  may  properly  ask  those  who 
contend  for  the  application  of  the  existing  law  to  the  littoral  sea 
independently  of  legislation,  to  tell  us  the  extent  to  which  we  are 
to  go  in  applying  it.    Are  we  to  limit  it  to  three  miles,  or  to  extend 
it  to  six?    Are  we  to  treat  the  whole  body  of  the  criminal  law 
as  applicable  to  it,  or  only  so  much  as  relates  to  "police  and 
safety"  ?    Or  are  we  to  limit  it,  as  one  of  these  authors  proposes, 
to  the  protection  of  fisheries  and  customs,  the  exacting  of  harbour 
and  light  dues,  and  the  protection  of  our  coasts  in  time  of  war? 
Which  of  these  writers  are  we  to  follow.    What  is  there  in  these 
conflicting  views  to  guide  us,  in  the  total  absence  of  precedent  or 
legal  sanction,  as  to  the  extent  to  which  we  may  subject  foreigners 
to  our  law  ?    What  is  there  in  them  which  authorizes  us  to  assume 
not  only  that  Parliament  can  of  right  deal  with  the  three-mile 
zone  as  forming  part  of  our  territory,  but  also  that,  by  the  mere 
assent  of  other  nations,  the  sea  to  this  extent  has  become  so  com- 
pletely a  part  of  our  territory  as  to  be  subject,  without  legislation, 
to  the'  whole  body  of  our  existing  law,  civil  and  criminal.     But  it 
is  said  that,  although  the  writers  on  international  law  are  dis- 
agreed on  so  many  essential  points,  they  are  all  agreed  as  to  the 
power  of  a  littoral  state  to  deal  with  the  three-mile  zone  as  sub- 
ject to  its  dominion,  and  that  consequently  we  may  treat  it  as 
subject  to  our  law.     But  this  reasoning  strikes  me  as  unsatisfac- 
tory; for  what  does  this  unanimity  in  the  general  avail  us  when 
we  come  to  the  practical  application  of  the  law  in  the  particular 
instance,  if  we  are  left  wholly  in  the  dark  as  to  the  degree  to 
which  the  law  can  be  legitimately  enforced?     This  unanimity  of 
opinion  that  the  littoral  sea  is,  at  all  events  for  some  purposes, 
subject  to  the  dominion  of  the  local  state,  may  ro  far  to  show  that, 
by  the  concurrence  of  other  nations,  such  a  state  may  deal  with 
these  waters  as  subject  to  its  legislation.     But  it  wholly  fails  to 
show  that,  in  the  absence  of  such  legislation,  the  ordinary  law  of 
the  local  state  will  extend  over  the  waters  in  question — which  is 
the  point  which  we  have  to  determine. 

Not  altogether   uninfluenced,   perhaps,   by  the   diversity  of 


TERRITORIAL   JURISDICTION    OF    NATIONS.  25 

Opinion  to  which  I  have  called  attention,  the  argument  in  support 
of  the  prosecution  presents  itself — not  without  some  sacrifice  of 
consistency — in  more  than  one  shape.  At  one  time  it  is  asserted 
that,  for  the  space  of  three  miles,  not  only  the  sea  itself,  but  the 
bed  on  which  it  rests,  forms  part  of  the  territory  or  realm  of  the 
country  owning  the  coast,  as  though  it  were  so  much  land ;  so 
that  the  right  of  passage  and  anchorage  might  be  of  right  denied 
to  the  ships  of  other  nations.  At  another  time  it  is  said  that, 
while  the  right  is  of  a  territorial  character,  it  is  subject  to  a  right 
of  passage  by  the  ships  of  other  nations.  Sometimes  the  sover- 
eignty is  asserted,  not  as  based  on  territorial  right,  but  simply  as 
attaching  to  the  sea,  over  which  it  is  contended  that  the  nation 
owning  the  coast  may  extend  its  law  to  the  foreigner  navigating 
within  it.  To  those  who  assert  that,  to  the  extent  of  three  miles 
from  the  coast,  the  sea  forms  part  of  the  realm  of  England,  the 
question  might  well  be  put,  When  did  it  become  so?  Was  it  so 
from  the  beginning?  It  certainly  was  not  deemed  to  be  so  as  to 
a  three-mile  zone,  any  more  than  as  to  the  rest  of  the  high  seas, 
at  the  time  the  statutes  of  Richard  II.  were  passed.  For  in  those 
statutes  a  clear  distinction  is  made  between  the  realm  and  the  sea, 
as  also  between  the  bodies  of  counties  and  the  sea ;  the  jurisdiction 
of  the  Admiral  being  (subject  to  the  exception  already  stated  as 
to  murder  and  mayhem)  confined  strictly  to  the  latter,  and  its 
exercise  "within  the  realm"  prohibited  in  terms.  The  language 
of  the  first  of  these  statutes  is  especially  remarkable : 

The  Admirals  and  their  deputies  shall  not  meddle  from  henceforth 
with  anything  done  within  the  realm  of  England,  but  only  zvith  things  done 
xipon  the  sea. 

It  is  impossible  not  to  be  struck  by  the  distinction  here  taken 
between  the  realm  of  England  and  the  sea ;  or,  when  the  two 
statutes  are  taken  together,  not  to  see  that  the  term  "realm," 
used  in  the  first  statute,  and  "bodies  of  counties,"  the  term  used 
in  the  second  statute,  mean  one  and  the  same  thing.  In  these 
statutes  the  jurisdiction  of  the  Admiral  is  restricted  to  the  high 
seas,  and,  in  respect  of  murder  and  mayhem,  to  the  great  rivers 
below  the  bridges,  while  whatever  is  within  the  realm,  in  other 
words  the  body  of  a  county,  is  left  within  the  domain  of  the 
common  law.  But  there  is  no  distinction  taken  between  one  part 
of  the  high  sea  and  another.  The  three-mile  zone  is  no  more 
dealt  with  as  within  the  realm  than  the  seas  at  large.  The  notion 
ofa  three-mile  zone  was  in  those  days  in  the  womb  of  time. 
vVhen  its  origin  is  traced,  it   is   found  to  be  of  comparatively 


26  PRIVATE     INTERNATIONAL    LAW. 

modern  growth.  The  first  mention  of  it  in  any  Court  of  this 
country  was  made  by  Lord  Stowell,  with  reference  to  the  rights 
of  neutrahty,  in  the  first  year  of  the  present  century,  in  the  case 
of  The  Tzvee  Gcbrocders  (3  C.  Rob.  162).  To  this  hour  it  has 
not,  even  in  theory,  yet  settled  into  certainty.  For  centuries 
before  it  was  thought  of,  the  great  landmarks  of  our  judicial  sys- 
tem had  been  set  fast — the  jurisdiction  of  the  common  law  over 
the  land  and'  the  inland  waters  contained  within  it,  forming 
together  the  realm  of  England,  that  of  the  Admiral  over  English 
vessels  on  the  seas,  the  common  property  or  highway  of  mankind. 
But  I  am  met  by  an  authority ;  and  beyond  question  ancient 
authority  may  be  found  in  abundance  for  the  assertion  that  the 
bed  of  the  sea  is  part  of  the  realm  of  England,  part  of  the  terri- 
torial possessions  of  the  Crown.  Coke,  commenting  on  sec.  439 
of  Littleton,  says,  in  explaining  the  w'ords  "out  of  the  realm:" 

If  a  man  be  upon  ihe  sea  of  England,  he  is  within  the  kingdom  or 
realme  of  England,  and  within  the  ligeance  of  the  king  of  England,  as  of 
his  crowne  of  England.  And  yet  a}tum  mare  is  out  of  the  jurisdiction  of 
the  common  law,  and  within  the  jurisdiction  of  the  Lord  Admiral. 

Lord  Hale,  no  doubt,  in  his  work  "De  Jure  Maris,"  speaks  of 
the  narraw  seas,  and  the  soil  thereof,  as  "part  of  the  King's 
waste,  demesnes,  and  dominions,  whether  in  the  body  of  a  county 
or  not."    But  this  was  said,  not  with  reference  to  the  theory  of  the 
three-mile  zone,  which  had  not  then  been  thought  of,  but  ( follow- 
ing Selden)  to  the  wild  notion  of  sovereignty  over  the  whole  of 
the  narrow  seas.    This  pretension  failing,  the  rest  of  the  doctrine, 
as  it  seems  to  me,  fails  with  it.     Moreover,  Hale  stops  short  of 
saying  that  the  bed  of  the  sea  forms  part  of  the  realm  of  England, 
as  a  portion  of  its  territory.     He  speaks  of  it  under  the  vague 
terms   of   "waste,"   "demesnes,"   or   "dominions."      He   carefully 
distinguishes  between  the  parts  of  the  sea  which  are  within  the 
body  of  a  county  and  those  which  are  not.     It  is  true  that,  in  his 
later  work  on  the  Pleas  of  the  Crown,  Lord  Hale,  speaking  in  the 
chapter  on  Treasons  (vol.  i,  p.  154),  of  what  is  a  levying  of  war 
against  the  King  "within  the  realm,"  according  to  the  required 
averment  in  an  indictment  for  that  offence,  instances  the  hostile  in- 
vasion of  the  King's  ships  ("which,"  he  observes,  "are  so  many 
royal  castles")  ;  and  this,  he  says,  "is  a  levying  of  war  within  the 
realm;"  the  reason  he  assigns  being  that  "the  narrow  seas  are 
of  the  ligeance  of  the  Crown  of  England,"  for  which  he  cites 
the  authority  of  Selden.     Here,  again,  we  have  Lord  Hale  blindly 
following  "Master   Selden,"   in   asserting  that   the   narrow    seas 


TERRITORIAL  JURISDICTION    OF    NATIONS,  27 

owe  allegiance  to  the  Crown  of  England.  A  hostile  attack 
by  a  subject  on  a  ship  of  war  on  the  narrow  seas  would  be  a 
levying  of  war  against  the  sovereign,  but  it  could  not  now  be 
said  to  be  high  treason  because  done  within  the  realm.  Black- 
stone  (Com.  vol.  i,  p.  no)  says  that  "the  main  or  high  seas" 
(which  he  afterwards  described  as  beginning  at  low-water 
mark)  "are  part  of  the  realm  of  England" — here  Mr.  Stephen, 
feeling  that  his  author  was  going  too  far,  interposes  the  words 
"in  one  sense" — "for  thereon,"  adds  Blackstone,  "our  Courts 
of  Admiralty  have  jurisdiction;  but  they  are  not  subject  to 
the  common  law."  This  is,  indeed,  singular  reasoning.  Instead' 
of  saying  that,  because  the  seas  are  part  of  the  realm  of  England, 
the  Courts  of  Admiralty  have  jurisdiction  over  them,  the  writer 
reverses  the  position,  and  says,  that  because  the  Admiralty  has 
jurisdiction  these  seas  are  part  of  the  realm — which  certainly  does 
not  follow.  If  it  did,  as  the  jurisdiction  of  the  Admiralty  extended 
as  regards  British  ships,  wherever  the  sea  rolls,  the  entire  ocean  ' 
might  be  said  to  be  within  the  realm. 

But  to  what,  after  all,  do  these  ancient  authorities  amount? 
Of  what  avail  are  they  towards  establishing  that  the  soil  in  the 
three-mile  zone  is  part  of  the  territorial  domain  of  the  Crown? 
These  assertions  of  sovereignty  were  manifestly  based  on  the  doc- 
trine that  the  narrow  seas  are  part  of  the  realm  of  England.  But 
that  doctrine  is  now  exploded.  Who,  at  this  day,  would  venture 
to  afifirm  that  the  sovereignty  asserted  in  those  days  now  exists? 
What  foreign  jurist  is  there  who  would  not  deny — what  English 
lawyer  who  would  not  shrink  from  maintaining — what  foreign 
Government  which  would  not  repel  such  a  pretension?  I  listened 
carefully  to  see  whether  any  such  assertion  would  be  made ;  but 
none  was  made.  No  one  has  gone  the  length  of  suggesting,  much 
less  of  openly  asserting,  that  the  jurisdiction  still  exists.  It  seems 
to  me  to  follow  that  when  the  sovereignty  and  jurisdiction  from 
which  the  property  in  the  soil  of  the  sea  was  inferred  is  gone,  the 
territorial  property  which  was  supposed  to  be  consequent  upon  it 
must  necessarily  go  with  it.  But  we  are  met  here  by  a  subtle 
and  ingenious  argument.  It  is  said  that  although  the  doctrine 
of  the  jurisdiction  of  the  Admiral  over  foreigners  on  the  four  seas 
has  died  out,  and  can  no  longer  be  upheld,  yet  that,  as  now,  by 
the  consent  of  other  nations,  sovereignty  over  this  territorial  sea 
is  conceded  to  us,  the  jurisdiction  formerly  asserted  mav  be 
revived,  and  made  to  attach  to  the  newly-acquired  domain.  I  am 
unable  to  adopt  this   reasoning.     Ex  concessis,  the  jurisdiction 


"28  PRIVATE    INTERNATIONAL    LAW. 

over  foreigners  in  foreign  ships  never  really  existed ;  at  all  events, 
.it  has  long  been  dead  and  buried.  But  it  is  evoked  from  its  grave 
and  brought  to  life  for  the  purpose  of  applying  it  to  a  part  of  the 
sea  which  was  included  in  the  whole,  as  to  which  it  is  now  prac- 
tically admitted  that  it  never  existed.  From  the  time  the  juris- 
diction was  asserted  to  the  time  when  the  pretension  to  it  was 
dropped,  it  was  asserted  over  this  portion  of  the  sea  as  part  of 
the  whole  to  which  the  jurisdiction  was  said  to  extend.  If  it  was 
bad  as  to  the  whole  indiscriminately,  it  was  bad  as  to  every  part 
of  that  whole.  But  why  was  it  bad  as  to  the  whole?  Simply 
because  the  jurisdiction  did  not  extend  to  foreigners  in  foreign 
ships  on  the  high  seas.  The  waters  in  question  have  always 
formed  part  of  the  high  seas.  They  are  alleged  in  this  indictment 
to  be  so  now.  How,  then,  can  the  Admiral  have  the  jurisdiction 
contended  for  over  them  if  he  had  it  not  before?  There  having 
been  no  new  statute  conferring  it,  how  has  he  acquired  it?  To 
come  back  to  the  subject  of  the  realm,  I  cannot  help  thinking  that 
some  confusion  arises  from  the  term  "realm"  being  used  in  more 
than  one  sense.  Sometimes  it  is  used,  as  in  the  statute  of  Richard 
II.,  to  mean  the  land  of  England,  and  the  internal  sea  within  it, 
sometimes  as  meaning  whatever  the  sovereignty  of  the  Crown  of 
England  extended,  or  was  supposed  to  extend,  over.  When  it  is 
used  as  synonymous  to  territory,  I  take  the  true  meaning  of  the 
term  "the  realm  of  England"  to  be  the  territory  to  and  over  which 
the  common  law  of  England  extends — in  other  words,  all  that 
is  within  the  body  of  any  county — to  the  exclusion  of  the  high 
seas,  which  come  under  a  different  jurisdiction  only  because  they 
are  not  within  any  of  those  territorial  divisions,  into  which,  among 
other  things  for  the  administration  of  the  law,  the  kingdom  is 
parceled  out.  At  all  events,  I  am  prepared  to  abide  by  the  dis- 
tinction taken  in  the  statutes  of  Richard  II.  between  the  realm., 
and  the  sea.  For  centuries  our  judicial  system  in  the  administra- 
tion of  the  criminal  law  has  been  divided  into  two  distinct  and 
independent  branches,  the  one  having  jurisdiction  over  the  land 
and  any  sea  considered  to  be  within  the  land  ;  the  other  over  the 
sea  external  to  the  land.  No  concurrent  assent  of  nations,  that 
a  portion  of  what  before  was  treated  as  the  high  seas,  and  as  such 
common  to  all  the  world,  shall  now  be  treated  as  the  territory 
of  the  local  state,  can  of  itself,  without  the  authority  of  Parlia- 
ment, convert  that  which  before  was  in  the  eye  of  the  law  high 
seas  into  British  territory,  and  so  change  the  law,  or  give  to  the 
courts  of  this  country,  independently  of  legislation,  a  jurisdiction 


TERRITORIAL  JURISDICTION    OF    NATIONS.  29 

over  the  foreigner  where  they  had  it  not  before.  The  argument 
i^i_siipport  of  the  contrary  appears  to  me,  I  must  say,  singularly 
inconsistent  with  itself.  According  to  it  the  littoral  sea  is  made 
to  assume  what  I  cannot  help  calling  an  amphibious  character. 
At  one  time  it  is  land,  at  another  it  is  water.  Is  It  desired  to  apply 
the  law  of  the  shore  to  it.  so  as  to  make  the  foreigner  subject  to 
that  law — it  becomes  so  much  territory.  Do  you  wish  to  keep 
it  within  the  jurisdiction  of  the  admiral — as  you  must  do  to 
uphold  this  indictment — it  is  made  to  resume  its  former  character 
as  part  of  the  high  seas.  Unal)le  to  follow  this  vacillating  reason- 
ing. I  must  add  that,  to  my  mind,  the  contention  that  the  littoral 
sea  fi'inis  part  of  the  realm  or  territory  of  Great  Britain  is  fatal 
to  the  argument  which  it  is  intended  to  support.  For,  if  the  sea 
"thus  becomes  part  of  the  territory,  as  though  it  were  actually 
intra  fauces  terra:,  it  seems  to  follow  that  it  must  become  annexed 
to  the  main  land,  and  so  become  part  of  the  adjoining  county,  in 
which  case  there  would  be  an  end  to  the  Admiralty  jurisdiction. 
The  littoral  sea  cannot  be  land  for  one  purpose  and  high  sea  for 
another.  Nor  is  anything  gained  by  substituting  the  term  "terri- 
tory" for  land.  The  law  of  England  knows  but  of  one  territory — 
that  which  is  within  the  body  of  a  county.  All  beyond  it  is  the 
high  sea,  which  is  out  of  the  province  of  English  law,  and  to 
which  it  cannot  be  extended  except  by  legislation.  It  does  not 
appear  to  me  that  the  argument  for  the  prosecution  is  advanced 
by  reference  to  encroachments  on  the  sea,  in  the  way  of  piers, 
breakwaters,  harbours,  and  the  like,  even  when  projected  into  the 
open  sea,  or  of  forts  erected  in  it,  as  is  the  case  in  the  Solent. 
Where  the  sea  or  the  bed  on  which  it  rests,  can  be  physically 
occupied  permanently,  it  may  be  made  subject  to  occupation  in  the 
same  manner  as  unoccupied  territory.  In  point  of  fact,  such 
encroachments  are  generally  made  for  the  benefit  of  the  naviga- 
tion ;  and  are  therefore  readily  acquiesced  in.  Or  they  are  for  the 
purposes  of  defence,  and  come  within  the  principle  that  a  nation 
may  do  what  is  necessary  for  the  protection  of  its  own  territory. 
Whether,  if  an  encroachment  on  the  sea  were  such  as  to  obstruct 
the  navigation  of  the  ships  of  other  nations,  it  would  not  amount 
to  a  just  cause  of  complaint,  as  inconsistent  with  international 
rights,  might,  if  the  case  arose,  be  deserving  of  serious  considera- 
tion. That  such  encroachments  are  occasionally  made  seems  to 
me  to  fall  very  far  short  of  establishing  such  an  exclusive  property 
in  the  littoral  sea  as  that  it  can  be  treated,  to  all  intents  and  pur- 
poses, in  the  absence  of  legislation,  as  part  of  the  realm.     Again. 


30  PRIVATE    INTERNATIONAL    LAW. 

the  fact,  adverted  to  in  the  course  of  the  discussion,  that  in  tlie 
west  of  England  mines  have  been  run  out  under  the  bed  of  the 
sea  to  beyond  low-water  mark,  seems  to  me  to  avail  but  little 
-towards  the  decision  of  the  question  of  territorial  property  in  the 
littoral  sea.  But  for  the  act  of  21  &  22  Vict.  c.  109,  to  which  our 
attention  has  been  specially  directed,  I  should  have  thought  the 
matter  simple  enough.  Between  high  and  low-water  mark  the 
property  in  the  soil  is  in  the  Crown,  and  it  is  to  be  assumed  that  it 
IS  by  grant  or  license  from  the  Crown,  or  by  prescription,  which 
presupposes  a  grant,  that  a  mine  is  carried  beneath  it.  Beyond 
low-water  mark  the  bed  of  the  sea  might  be  said  to  be  unappro- 
priated, and,  if  capable  of  being  appropriated,  would  become  the 
property  of  the  first  occupier.  I  should  not  have  thought  that 
the  carrying  one  or  two  mines  into  the  bed  of  the  sea  beyond  low- 
water  mark  could  have  any  real  bearing  on  a  question  of  inter- 
national law  like  the  present. 

It  thus  appearing,  as  it  seems  to  me,  that  the  littoral  sea 
beyond  low-water  mark  did  not,  as  distinguished  from  the  rest 
of  the  high  seas,  originally  form  part  of  the  territory  of  the  realm, 
the  question  again  presents  itself,  when  and  how  did  it  become 
so?  Can  a  portion  of  the  high  seas  have  been  converted  into 
British  territory  without  any  action  on  the  part  of  the  British 
Government  or  Legislature — by  the  mere  assertions  of  writers  on 
public  law — or  even  by  the  assent  of  other  nations?  And  when  in 
■support  of  this  position,  or  of  the  theory  of  the  three-mile  zone 
in  general,  the  statements  of  the  writers  on  international  law  are 
relied  on,  the  question  may  well  be  asked,  upon  what  authority  are 
these  statements  founded?  When  and  in  what  manner  have  the 
nations,  who  are  to  be  affected  by  such  a  rule  as  these  writers, 
following  one  another,  have  laid  down,  signified  their  assent  to 
it?  to  say  nothing  of  the  difficulty  which  might  be  found  in  saying 
to  which  of  these  conflicting  opinions  such  assent  had  been  given. 
For,  even  if  entire  unanimity  had  existed  in  respect  of  the  impor- 
tant particulars  I  have  referred  to,  in  place  of  so  much  discrep- 
ancy of  opinion,  the  question  would  still  remain,  how  far  the  law 
as  stated  bv  the  pul)licists  had  received  the  assent  of  the  civilized 
nations  of  the  world.  For  writers  on  international  law,  however 
valuable  their  labours  may  be  in  elucidating  and  ascertaining  the 
principles  and  rules  of  law,  cannot  make  the  law.  To  be  binding, 
the  law  must  have  received  the  assent  of  the  nations  who  are  to 
be  bound  by  it.  This  assent  may  be  express,  as  by  treaty  or  the 
acknowledged  concurrence  of  governments,  or  may  be  implied 


TERRITORIAL  JURISDICTION    OF    NATIONS.  31 

from  established  n'sai^e — an  instance  of  which  is  to  be  found  in 
the  fact  that  merchant  vessels  on  the  high  seas  are  held  to  be 
subject  only  to  the  law  of  the  nation  under  whose  flag  they  sail, 
while  in  the  ports  of  a  foreign  state  they  are  subject  to  the  local 
law  as  well  as  that  of  their  own  country.  In  the  absence  of  proof 
of  assent,  as  derived  from  one  or  other  of  these  sources,  no 
unanimity  on  the  part  of  theoretical  writers  would  warrant  the 
judicial  application  of  the  law  on  the  sole  authority  of  their  views 
•or  stataments.  Nor,  in  my  opinion,  would  the  clearest  proof  of 
unanimous  assent  on  the  part  of  other  nations  be  sufficient  to 
authorise  the  tribunals  of  this  country  to  apply,  without  an  Act 
■of  Parliament,  what  would  practically  amount  to  a  new  law.  Ih 
so  doing  we  should  be  unjustifiably  usurping  the  province  of  the 
Legislature.  The  assent  of  nations  is  doubtless  sufficient  to  give 
the  power  of  parliamentary  legislation  in  a  matter  otherwise 
within  the  sphere  of  international  law ;  but  it  would  be  powerless 
to  confer  a  jurisdiction  beyond  and  unknown  to  the  law,  such  as 
that  now  insisted  on,  a  jurisdiction  over  foreigners  in  foreign 
ships  on  a  portion  of  the  high  seas.  When  I  am  told  that  all 
other  nations  have  assented  to  such  an  absolute  dominion  on  the 
part  of  the  littoral  state,  over  this  portion  of  the  sea,  as  that  their 
ships  may  be  excluded  from  it,  and  that,  without  any  open  legis- 
lation, or  notice  to  them  or  their  subjects,  the  latter  may  be  held 
liable  to  the  local  law,  I  ask,  first,  what  proof  there  is  of  such 
.assent  as  is  asserted ;  and,  secondly,  to  what  extent  has  such 
assent  been  carried?  a  question  of  infinite  importance,  when, 
undirected  by  legislation,  we  are  called  upon  to  apply  the  law  on 
the  strength  of  such  assent.  It  is  said  that  we  are  to  take  the 
statements  of  the  publicists  as  conclusive  proof  of  the  assent  in 
question,  and  much  eloquence  has  been  expended  in  impressing 
on  us  the  respect  which  is  due  to  their  authority,  and  that  thcv  are 
to  be  looked  upon  as  witnesses  of  the  fact,  that  those  statements, 
or  the  foundation  on  which  those  statements  rest,  we  are  scarcely 
at  liberty  to  question.  I  demur  altogether  to  this  position.  I 
entertain  a  profound  respect  for  the  opinion  of  jurists  when  deal- 
ing with  matters  of  juridical  principle  and  opinion  ;  but  we  are  here 
dealing  with  a  question  not  of  opinion  but  of  fact,  and  I  must 
assert  my  entire  liberty  to  examine  the  evidence,  and  see  upon 
what  foundation  these  statements  are  based.  The  question  is 
not  one  of  theoretical  opinion,  but  of  fact,  and,  fortunately,  the 
writers  upon  whose  statements  we  are  called  upon  to  act  have 
.afforded  us  the  means  of  testing  those  statements  by  reference 


32  PRIVATE    INTERNATIONAL    LAW. 

to  facts.  They  refer  us  to  two  things,  and  to  these  alone — 
treaties  and  usage.  Let  us  look  a  little  more  closely  into  both. 
First,  then,  let  us  see  how  the  matter  stands  as  regards  treaties. 
It  may  be  asserted,  without  fear  of  contradiction,  that  the  rule 
that  the  sea  surrounding  the  coast  is  to  be  treated  as  a  part  of 
the  adjacent  territory,  so  that  the  State  shall  have  exclusive 
dominion  over  it,  and  that  the  law  of  the  latter  shall  be  gen- 
erally applicable  to  those  passing  over  it  in  the  ships  of  other 
nations,  has  never  been  made  the  subject-matter  of  any  treaty, 
or,  as  matter  of  acknowledged  right,  or  has  formed  the  basis  of 
any  treaty,  or  has  even  been  the  subject  of  diplomatic  discussion. 
It  has  been  entirely  the  creation  of  the  writers  on  international 
law.  It  is  true  that  the  writers  who  have  been  cited  constantly 
refer  to  treaties  in  support  of  the  doctrine  they  assert.  But  when 
the  treaties  they  refer  to  are  looked  at,  they  will  be  found  to  relate 
to  two  subjects  only — the  observance  of  the  rights  and  obligations 
of  neutrality,  and  the  exclusive  right  of  fishing.  In  fixing  the 
limits  to  which  these  rights  should  extend,  nations  have  so  far 
followed  the  writers  on  international  law  as  to  adopt  the  principle 
of  the  three-mile  range  as  a  convenient  distance.  There  are  sev- 
eral treaties  by  which  nations  have  engaged,  in  the  event  of  either 
of  them  being  at  war  with  a  third,  to  treat  the  sea  within  three 
miles  of  each  other's  coasts  as  neutral  territory,  within  which  no 
warlike  opperations  should  be  carried  on ;  instances  of  which  will 
be  found  in  the  various  treatises  on  international  law.  Thus,  for 
instance,  in  the  treaties  of  commerce,  between  Great  Britain  and 
France,  of  September,  1786;  between  France  and  Russia,  of 
-January,  1787;  between  Great  Britain  and  the  United  States,  of 
October,  1794,  each  contracting  party  engages,  if  at  war  with 
any  other  nation,  not  to  carry  on  hostilities  within  cannon-shot 
of  the  coast  of  the  other  contracting  party ;  or,  if  the  other  should 
be  at  war,  not  to  allow  its  vessels  to  be  captured  within  the  like 
distance.  There  are  many  other  treaties  of  the  like  tenor,  a  long^ 
list  of  which  is  given  by  Azuni  (vol.  ii,  p.  78)  ;  and  various  ordi- 
nances and  laws  have  been  made  by  the  different  states  in  order 
to  give  effect  to  them.  Again,  nations  possessing  opposite  or 
neighbouring  coasts,  bordering  on  a  common  sea,  have  sometimes 
found  it  expedient  to  agree  that  the  subjects  of  each  shall  exercise 
an  exclusive  right  of  fishing  to  a  given  distance  from  their  own 
shores,  and  also  have  accepted  the  three  miles  as  a  convenient 
distance.  Such,  for  instance,  are  the  treaties  made  between  this 
country  and  the  United  States  in  relation  to  the  fishery  off  the 


TERRITORIAL  JURISDICTION    OF    NATIONS.  33 

coast  of  Newfoundland,  and  those  between  this  country  and 
France  in  relation  to  the  fishery  on  their  respective  shores ;  and 
local  laws  have  l)een  passed  to  p^ive  effect  to  these  ensap^ements. 
But  in  all  these  treaties  this  distance  is  adopted,  not  as  matter  of 
existing  right  estahhshcd  by  the  general  law  of  nations,  but  as 
matter  of  mutual  concession  and  convention.  Instead  of  uphold- 
ing the  doctrine  contended  for,  the  fact  of  these  treaties  having 
been  entered  into  has  rather  the  opposite  tendency :  for  it  is  obvi- 
ous that,  if  the  territorial  right  of  a  nation  bordering  on  the  sea 
to  this  portion  of  the  adjacent  waters  had  been  established  by  the 
common  assent  of  nations,  these  treaty  arrangements  would  have 
been  wholly  superfluous.  Each  nation  would  have  been  bound, 
independently  of  treaty  engagement,  to  respect  the  neutrality  of  tlie 
other  in  these  waters  as  much  as  in  its  inland  waters.  The  for- 
eigner invading  the  rights  of  the  local  fisherman  would  have  been 
amenable,  consistently  with  international  law,  to  local  legislation 
prohibiting  such  infringement,  without  any  stipulation  to  that  effect 
by  treaty.  For  what  object,  then,  have  treaties  been  resorted  to? 
Manifestly  in  order  to  obviate  all  questions  as  to  concurrent  or 
conflicting  rights  arising  under  the  law  of  nations.  Possibly, 
after  these  precedents  and  all  that  has  been  written  on  this  sub- 
ject, it  may  not  be  too  much  to  say  that,  independently  of  treaty, 
the  tliree-mile  belt  of  sea  might  at  this  day  be  taken  as  belonging, 
for  these  purposes,  to  the  local  state.  But  it  is  scarcely  logical 
to  infer,  from  such  treaties  alone,  that,  because  nations  have 
agreed  to  treat  the  littoral  sea  as  belonging  to  the  country  it 
adjoins,  for  certain  specified  objects,  they  have  therefore  assented 
to  forego  all  other  rights  previously  enjoyed  in  common,  and  have 
submitted  themselves,  even  to  the  extent  of  the  right  of  navigation 
on  a  portion  of  the  high  seas,  and  the  liability  of  their  subjects 
therein  to  the  criminal  law,  to  the  will  of  the  local  sovereign,  and 
the  jurisdiction  of  the  local  state.  Equally  illogical  is  it,  as  it 
seems  to  me,  from  the  adoption  of  the  three-mile  distance  in  these 
particular  instances,  to  assume,  independently  of  everything  else, 
a  recognition,  by  the  common  assent  of  nations,  of  the  principle 
that  the  subjects  of  one  state  passing  in  ships  within  three  miles 
of  the  coast  of  another  shall  be  in  all  respects  subject  to  the  law  of 
the  latter.  It  may  be  that  the  maritime  nations  of  the  world  are 
prepared  to  acquiesce  in  their  appropriation  of  the  littoral  sea ; 
but  I  cannot  think  that  these  treaties  help  us  nuich  towards  arriv- 
ing at  such  a  conclusion.  At  all  events,  the  question  remains, 
whether  judicially  we  can  infer  that  the  nations  who  have  been 


34  PRIVATE     INTERNATIONAL    LAW. 

parties  to  them,  and  still  further  those  who  have  not,  have  thereby 
assented  to  the  application  of  the  criminal  law  of  other  nations  to 
their  subjects  on  the  waters  in  question,  and  on  the  strength  of 
such  inference  so  apply  the  criminal  law  of  this  country.     The 
uncertainty  in  which  we  are  left,  so  far  as  judicial  knowledge 
is  concerned,  as  to  the  extent  of  such  assent,  presents,  I  think,  a 
very  serious   obstacle  to  our   assuming  the  jurisdiction  we  are 
called  upon  to  exercise,  independently  of  the,  to  my  mind,  still 
more  serious  difficulty,  that  we  should  be  assuming  it  without 
legislative  warrant.     So  much  for  treaties.     Then  how  stands  the 
matter  as  to  usage?     When  the  matter  is  looked  into,  the  only 
usage  found  to  exist  is  such  as  is  connected  with  navigation,  or 
with  revenue,  local  fisheries,  or  neutrality,  and  it  is  to  these  alone 
that  the  usage  relied  on  is  confined.     Usage  as  to  the  application 
of  the  general  law  of  local  state  to  foreigners  on  the  littoral  sea, 
notwithstanding  reference  to  usage   is   frequently  made  by  the 
publicists  in  support  of  their  doctrine,  there  is  actually  none.     No 
nation  has  arrogated  to  itself  the  right  of  excluding  foreign  ves- 
sels from  the  use  of  its  external  littoral  waters  for  the  purpose  of 
navigation,  or  has  assumed  the  power  of  making  foreigners  in 
foreign  ships  passing  through  these  waters  subject  to  its  law, 
otherwise  than  in  respect  of  matters  connected  with  the  naviga- 
tion, or  with  revenue,  local  fisheries,  or  neutrality.     And  it  is  to 
these  alone  that  the  usage  relied  on  is  confined.     Nor  have  the 
tribunals  of  any  nation  held  foreigners  in  these  waters  amenable 
generally  to  the  local  criminal  law  in  respect  of  offences.     It  is 
for  the  first  time  in  the  annals  of  jurisprudence  that  a  court  is 
now  called  upon  to  apply  the  criminal  law  of  the  country  to  such 
a  case  as  the  present.     It  may  well  be,  I  say  again,  that,  after  all 
that  has  been  said  and  done  in  this  respect — after  the  instances 
which   have  been  mentioned   of  the  adoption   of  the   three-mile 
distance,  and  the  repeated  assertion  of  this  doctrine  by  the  writers 
on  public  law — a  nation  which  should  now  deal  with  this  portion 
of  the  sea  as  its  own,  so  as  to  make  foreigners  within  it  subject 
to  its  law,  for  the  prevention  and  punishment  of  offences,  would 
not  be  considered  as  infringing  the  rights  of  other  nations.     But 
I  apprehend  that  as  the  ability  so  to  deal  with  these  waters  would 
result,  not   from   any  original   or   inherent   right,   but   from   the 
acquiescence  of  other  states,  some  outward  manifestation  of  the 
national  will,  in  the  shape  of  open  practice  or  municipal  legisla- 
tion, so  as  to  amount,  at  least  constructively,  to  an  occupation  of 
that  which  was  before  unappropriated,   would  be  necessary  to 


TERRITORIAL  JURISDICTION    OF    NATIONS.  6j 

render  the  forei.c^ner,  not  previously  amenal)le  to  our  law,  subject 
to  its  c^eneral  control.  That  such  legislation,  whether  consistent 
with  the  general  law  of  nations  or  not,  would  be  binding  on  the 
tribunals  of  this  country — leaving  the  question  of  its  consistency 
with  international  law  to  be  determined  between  the  governments 
of  the  respective  nations — can  of  course  admit  of  no  doubt.  The 
question  is  whether  such  legislation  would  not,  at  all  events,  be 
necessary  to  justify  our  Courts  in  applying  the  law  of  this  country 
to  foreigners  under  entirely  novel  circumstances  in  which  it  has 
never  been  applied  before.  It  is  obviously  one  thing  to  say  that 
the  Legislature  of  a  nation  may,  from  the  common  assent  of  other 
nations,  have  acquired  the  full  right  to  legislate  over  a  part  of 
that  which  was  before  high  sea,  and  as  such  common  to  the  world ; 
another  and  a  very  diiTerent  thing  to  say  that  the  law  of  the  local 
state  becomes  thereby  at  once,  without  anything  more,  applicable 
to  foreigners  within  such  part,  or  that,  independently  of  legisla- 
tion, the  courts  of  the  local  state  can  propria  vigore  so  apply  it. 
The  one  position  does  not  follow  from  the  other ;  and  it  is  essential 
to  keep  the  two  things,  the  power  of  Parliament  to  legislate,  and 
the  authority  of  our  Courts,  without  such  legislation,  to  apply 
the  criminal  law  where  it  could  not  have  been  applied  before, 
altogether  distinct,  which,  it  is  evident,  is  not  always  done.  It 
is  unnecessary  to  the  defence,  and  equally  so  to  the  decision  of 
the  case,  to  determine  whether  Parliament  has  the  right  to  treat 
the  three-mile  zone  as  part  of  the  realm  consistently  with  inter- 
national law.  That  is  a  matter  on  which  it  is  for  Parliament  itself 
to  decide.  It  is  enough  for  us  that  it  has  the  power  to  do  so.  The 
question  really  is  whether,  acting  judicially,  we  can  treat  the 
power  of  Parliament  to  legislate  as  making  up  for  the  absence 
of  actual  legislation.  I  am  clearly  of  opinion  that  we  cannot,  and 
that  it  is  only  in  the  instances  in  which  foreigners  on  the  seas  have 
been  made  specially  liable  to  our  law  by  statutory  enactment  that 
that  law  can  be  applied  to  them.  Let  us,  then,  now  see  what  has 
been  done  herein  in  the  way  of  legislation.  The  statutes  relating 
to  the  sea  by  which  foreigners  may  be  afifected  may  be  divided 
into  two  classes,  those  which  have  no  reference  to  the  three-mile 
zone,  and  those  which  have.  The  latter,  again,  may  be  divided 
into  those  which  expressly  refer  to  the  foreigner,  and  those  which 
are  said  to  do  so  by  implication  only.  It  is  desirable  to  dispose 
of  those  first  referred  to  before  we  come  to  the  statutes  which 
have  reference  to  the  three-mile  distance.  First  in  order  comes 
the  statute  of  the  28  Hen.  8,  c.  15.  upon  which  an  argument  hns 


36  PRIVATE    INTERNATIONAL    LAW. 

been  founded,  resting  on  a  broader  basis  than  that  of  the  modern 
doctrine,  and  which,  if  it  could  be  upheld,  would  dispense  with  the 
necessity  of  resorting  to  the  three-mile  zone  at  all.     It  has  been 
suggested  that,  independently  of  any  legislation  having  special 
reference   to   the   three-mile   zone,   the    statute   of   Henry   VIII., 
which    transferred,    as    we    have    seen,    the    jurisdiction    of    the 
Admiral  to  the  Courts  of  Common  Law,  had  the  effect  of  making 
foreigners  subject  to  our  law  for  offences  committed  on  foreign 
ships  within  the  narrow  seas;  the  argument,  if  I  apprehend  it 
rightly,  being,  first,  that  the  language  of  the  statute,  being  general 
in  its  terms,  must  be  taken  to  have  included  foreigners  as  well  as 
subjects;  secondly,  that,  inasmuch  as.  at  the  time  when  the  statute 
of  Henry  VIII.  was  passed,  the  claim  to  dominion  over  the  nar- 
row seas  was  still  asserted  on  the  part  of  the  Crown,  the  jurisdic- 
tion given  to  the  Admiral  by  the  prior  Admiralty  Commissions 
must  be  taken  to  have  been  co-extensive  therewith,  and  such  juris- 
diction must  therefore  be  considered  as  having  been  transferred 
by  the  statute.     It  is  true  that  the  language  of  the  statute  is  quite 
general  in  its  terms.     After  reciting  the  inconveniences  arising 
from  the  existing  jurisdiction,  it  enacts  that  "all  treasons,  felonies, 
robberies,  murders,  and  confederacies  committed  in  or  upon  the 
sea,  or  in  any  haven,  river,  creek,  or  place  where  the  admiral  or 
admirals  have,  or  pretend  to  have" — which  has  been  construed  to 
mean    rightfully    assert — "jurisdiction,    shall    be    inquired,    tried, 
heard,  and  determined  and  judged  in  such  shires  and  places  in  the 
realm  as  shall  be  limited  by  the  King's  commission,  in  like  form 
and  condition  as  if  such  offences  had  been  committed  on  land." 
No  doubt  these  words  are  large  enough  to  include  foreigners  as 
well  as  subjects;  but  so  they  are  to  include  the  entire  ocean  as 
well  as  the  narrow  seas.    And  it  cannot  be  supposed  that  anything 
so  preposterous  was  contemplated  as  to  make  foreigners  liable  to 
the  law  of  this  country  for  offences  committed  on  foreign  ships  all 
over  the  world.     The  statute  must  receive  a  reasonable  construc- 
tion, and  the  construction  put  upon  it  by  the  highest  authorities 
has  always  been  that  all  that  it  effected,  or  was  intended  to  effect, 
was,  as  I  have  already  stated,  a  transfer  of  jurisdiction  only. 

This  being  the  true  rule  of  construction,  we  have  to  consider 
whether  the  jurisdiction  of  the  Admiral  extended  over  foreigners 
on  the  high  seas  consistently  with  the  rights  of  other  nations,  and 
I  take  it  to  be  perfectly  clear  that  it  did  not.  Nor  could  it,  con- 
sistently with  the  law  of  nations,  be  made  to  extend  to  them.  For, 
if  there  is  one  proposition  of  international  law  more  settled  and 


TERRITORIAL  JURISDICTION    OF    NATIONS.  3( 

indisputable  than  another,  it  is  that  the  ships  of  each  nation  on  the 
high  seas  carry  the  law  of  their  own  nation  with  them,  and  that 
those  on  board  of  them  are  amenable,  in  respect  of  offences  com- 
mitted in  them  (save  and  except  in  respect  of  piracy,  which  is  an 
offence  against  the  law  of  all  nations),  to  the  law  of  such  nation 
alone :  the  only  exception  to  this  otherwise  universal  rule  being 
that  the  merchant  ships  of  one  nation,  when  in  the  ports  and 
waters  of  another,  are  subject  to  the  law  of  the  latter.  But  this 
liability  is  by  all  jurists  treated  as  the  exception  to  the  general 
rule.  To  argue  that,  because  merchant  ships  and  those  in  them, 
when  in  the  waters  of  another  state,  are  liable  to  the  local  law, 
this  liability  can  be  extended  to  foreign  ships  all  over  the  world, 
is  to  make  the  exception  swallow  up  the  rule.  And  this  brings  me 
to  the  second  branch  of  the  argument,  that  the  jurisdiction  having 
been  asserted  as  to  the  narrow  seas  at  the  time  the  statute  passed, 
it  must  be  taken  to  have  been  transferred  by  the  statute.  The 
answer  to  such  a  contention  is  that,  no  reference  being  made  in 
the  statute  to  this  now  exploded  claim  of  sovereignty,  we  must 
read  the  statute  as  having  transferred — as,  indeed,  it  could  alone 
transfer — such  jurisdiction  only  as  actually  existed.  Jurists  are 
now  agreed  that  the  claim  to  exclusive  dominion  over  the  narrow 
seas,  and  consequent  jurisdiction  over  foreigners  for  offences 
committed  thereon,  was  extravagant  and  unfounded,  and  the  doc- 
trine of  the  three-mile  jurisdiction  has  taken  the  place  of  all  such 
pretensions.  In  truth,  though  largely  asserted  in  theory,  the  juris- 
diction was  never  practically  exercised  in  respect  of  foreigners. 
The  fallacy  of  such  an  argument  as  I  have  here  referred  to  con- 
sists in  supposing  the  jurisdiction  to  have  had  a  real  existence, 
so  as  to  be  capable  of  being  transferred  without  being  first 
expressly  created  by  the  statute.  And  the  position  contended  for 
labours  under  this  further  difficulty,  that  it  supposes  a  statutory 
transfer,  by  im])lication,  of  a  jurisdiction  of  one  extent  at  the 
time  the  statute  was  passed,  and  of  another  at  the  present 
day.  One  or  two  other  statutes  relating  to  the  sea  may  be 
disposed  of  in  a  few  words,  as  having  little  or  no  bearing  on  the 
question  before  us.  The  Act  of  5  Eliz.  c.  5.  an  Act  for  the 
protection  of  English  shipping,  after  prohibiting,  under  penalties, 
the  importation  of  particular  articles  in  foreign  ships,  provides 
(s.  30)  that  such  of  the  offences  created  by  the  Act  as  shall  be 
done  on  the  main  sea,  or  coasts  of  the  sea,  l^eing  no  part  of  the 
body  of  any  county  of  this  realm,  and  without  the  precincts, 
jurisdiction,   and   liberty  of  the   Cinque    Ports,   and   out   of  anv 


gg  PRIVATE    INTERNATIONAL    LAW. 

haven  or  pier,  shall  be  tried  according  to  the  statute  of  28 
Hen.  8.  If  done  on  the  main  sea,  or  coasts  of  the  sea,  within 
the  jurisdiction  of  the  Cinque  Ports,  such  offence  is  to  be  tried 
before  the  Lord  Warden,  or  his  heutenant  or  judge,  or  before 
judges  of  oyer  and  terminer,  according  to  the  statute  of  Hen.  8. 
It  is  obvious  that  this  statute  only  affects  the  foreigner  who  is 
seeking  our  shores  with  the  object  of  breaking  the  law.  Cor- 
oners for  counties,  having  under  the  old  law  no  authority  to 
inquire  of  matters  arising  on  the  sea  unless  within  the  body  of 
the  county,  are  now,  by  a  recent  Act  of  Parliament  (6  Vict.  c.  12) 
enabled,  where  there  is  no  Admiralty  coroner,  to  hold  inquests 
on  bodies  found  on  the  sea.  That  the  Admiralty  coroner  or  the 
county  coroner  is  empowered  to  hold  an  inquest  on  a  dead  body 
found  floating  on  the  sea,  though  the  body  should  prove  to  be  that 
of  a  foreigner,  can  have  no  bearing  on  such  a  question  as  the 
present.  Again,  by  the  7  Geo.  4,  c.  38,  justices  of  the  peace  are 
empowered  to  take  any  information  upon  oath  touching  any 
treason,  piracy,  felony,  robbery,  murder,  conspiracy,  or  other 
offence,  committed  on  the  sea,  or  in  any  haven,  river,  creek,  or 
place  where  the  admiral  has  power  are  jurisdiction,  and  to  commit 
or  hold  to  bail.  But  this  enactment,  which  is  merely  in  further- 
ance of  the  administration  of  justice,  has  no  special  reference  to 
foreigners,  and  would  leave  the  question  of  jurisdiction  to  be  dis- 
posed of  by  the  Court  before  which  the  offence  would  afterwards 
come  to  be  tried. 

I  pass  on  to  the  statutory  enactments  relating  to  foreigners 
within  the  three-mile  zone.  These  enactments  may  be  divided, 
'first,  into  those  which  are  intended  to  protect  the  interests  of  the 
state  and  those  which  are  not ;  secondly,  into  those  in  which  the 
foreigner  is  expressly  named,  and  those  in  which  he  has  been  held 
to  be  included  by  implication  only.  Hitherto,  legislation,  so  far 
as  relates  to  foreigners  in  foreign  ships  in  this  part  of  the  sea, 
has  been  confined  to  the  maintenance  of  neutral  rights  and  obliga- 
tions, the  prevention  of  breaches  of  the  revenue  and  fishery  laws, 
and,  under  particular  circumstances,  to  cases  of  collision.  In  the 
two  first  the  legislation  is  altogether  irrespective  of  the  three- 
mile  distance,  being  founded  on  a  totally  different  principle, 
namely,  the  right  of  a  state  to  take  all  necessary  measures  for 
the  protection  of  its  territory  and  rights,  and  the  prevention  of 
any  breach  of  its  revenue  laws. 

The  Legislature  has  omitted  to  adopt  the  alleged  sovereignty 
over  the  littoral  sea,  to  the  extent  of  making  our  penal  law  appli- 


TERRITORIAL  JURISDICTION    OF    NATIONS.  89 

cable  generally  to  foreigners  passing  through  it  for  the  purpose  of 
navigation.  Can  a  court  of  justice  take  upon  itself,  in  such  a 
matter,  to  do  what  the  Legislature  has  not  thought  fit  to  do — that 
is,  make  the  whole  body  of  our  penal  law  applicable  to  foreign 
vessels  within  three  miles  of  our  coasts?  It  is  further  apparent 
from  these  instances  of  specific  legislation  that,  when  asserting 
its  power  to  legislate  with  reference  to  the  foreigner  within  the 
three-mile  zone,  Parliament  has  deemed  it  necessary,  wherever  it 
was  thought  right  to  subject  him  to  our  law,  expressly  to  enact 
that  he  should  be  so.  We  must  take  this,  I  think,  as  an  exposi- 
tion of  the  opinion  of  Parliament  that  specific  legislation  is  here 
necessary,  and  consequently,  that  without  it  the  foreigner  in  a 
foreign  vessel  will  not  come  within  the  general  law  of  this  country 
in  respect  of  matters  arising  on  the  sea.  Legislation,  in  relation 
to  foreign  ships  coming  into  British  ports  ancl  waters,  rests  on  a 
totally  different  principle,  as  was  well  explained  by  Dr.  Lushing- 
ton  in  the  case  of  the  Annapolis  (i  Lush.  Adm.  295). 

Assuming  everything,  short  of  the  ultimate  conclusion,  to  be 
conceded  to  the  prosecution — granting  that  the  three-mile  zone 
forms  part  of  the  territory  or  realm  of  England,  and  that  without 
parliamentary  interference  the  territorial  sea  has  become  part  of 
the  realm  of  England,  so  that  jurisdiction  has  been  acquired  over 
it,  the  question  arises — in  whom  is  the  jurisdiction?  The  indict- 
ment alleges  that  the  offence  was  committed  on  the  high  seas. 
To  support  this  averment  the  place  in  question  must  still  remain 
part  of  the  high  sea.  But  if  it  is  to  be  held  to  be  the  high  sea, 
and  so  within  the  jurisdiction  of  the  Admiral,  the  prosecution 
fails,  because,  ex  liypofhcsi,  the  Admiral  never  had  jurisdiction 
over  foreigners  in  foreign  ships :  and  no  assent  on  the  part  of 
foreign  nations  to  the  exercise  of  dominion  and  jurisdiction  over 
these  waters  can,  without  an  Act  of  Parliament,  confer  on  the 
Admiral  or  any  other  judge  a  larger  jurisdiction  than  he  pos- 
sessed before.  If  the  littoral  sea  is  to  be  considered  territory — in 
other  words,  no  longer  high  sea — the  present  indictment  fails,  and 
this,  whether  the  part  in  question  has  become  part  of  a  county  or 
not.  The  onlv  distinction  known  to  the  law  of  Enijland.  as 
regards  the  sea,  is  between  such  part  of  the  sea  as  is  within  the 
body  of  a  county  and  such  as  is  not.  In  the  first  there  is  juris- 
diction over  the  foreigner  on  a  foreign  ship;  in  the  other,  there  is 
not.  Such  a  thing  as  sea  which  shall  be  at  one  and  the  same  time 
high  sea  and  also  part  of  the  territory,  is  iniknown  to  the  present 
law,  and  never  had  an  existence,  except  in  the  old  and  senseless 


40  PRIVATE    INTERNATIONAL    LAW. 

theory  of  a  universal  dominion  over  the  narrow  seas.  To  put  this 
shortly.  To  sustain  this  indictment  the  littoral  sea  must  still  be 
considered  as  part  of  the  high  seas,  and  as  such,  under  the  juris- 
diction of  the  Admiral.  But  the  Admiral  never  had  jurisdiction 
over  foreign  ships  on  the  high  seas.  How,  when  exercising  the 
functions  of  a  British  Judge,  can  he,  or  those  acting  in  substitu- 
tion for  him,  assume  a  jurisdiction  which  heretofore  he  did  not 
possess,  except  authorized  by  statute  ?  In  the  result,  looking  to  the 
fact  that  all  pretension  to  sovereignty  or  jurisdiction  over  foreign 
ships  in  the  narrow  seas  has  long  since  been  wholly  abandoned — 
to  the  uncertainty  which  attaches  to  the  doctrine  of  the  publicists 
as  to  the  degree  of  sovereignty  and  jurisdiction  which  may  be 
exercised  on  the  so-called  territorial  sea — to  the  fact  that  the  right 
of  absolute  sovereignty  therein,  and  of  penal  jurisdiction  over  the 
subjects  of  other  states,  has  never  been  expressly  asserted  or  con- 
ceded among  independent  nations,  or,  in  practice,  exercised  and 
acquiesced  in,  except  for  violation  of  neutrality  or  breach  of 
revenue  or  fishery  laws,  which,  as  has  been  pointed  out,  stand  on 
a  different  footing, — as  well  as  to  the  fact  that,  neither  in  legis- 
lating with  reference  to  shipping,  nor  in  respect  of  the  criminal 
law,  has  Parliament  thought  proper  to  assume  territorial  sov- 
ereignty over  the  three-mile  zone,  so  as  to  enact  that  all  offences 
committed  upon  it,  by  foreigners  in  foreign  ships,  should  be 
within  the  criminal  law  of  this  country,  but,  on  the  contrary, 
wherever  it  was  thought  right  to  make  the  foreigner  amenable  to 
our  law,  has  done  so  by  express  and  specific  legislation,  I  cannot 
think  that,  in  the  absence  of  all  precedent,  and  of  any  judicial 
decision  or  authority  applicable  to  the  present  purpose,  we  should 
be  justified  in  holding  an  offence,  committed  under  such  circum- 
stances, to  be  punishable  by  the  law  of  England,  especially  as  in 
so  holding  we  must  declare  the  whole  body  of  our  penal  law  to  be 
applicable  to  the  foreigner  passing  our  shores  in  a  foreign  vessel 
on  his  way  to  a  foreign  port.  I  am  by  no  means  insensible  to  the 
argument  ab  inconvciiienti  pressed  upon  us  by  the  Solicitor-Gen- 
eral. It  is,  no  doubt,  desirable,  looking  to  the  frequency  of  col- 
lisions in  the  neighborhood  of  our  coasts,  that  the  commanders 
of  foreign  vessels,  who,  by  unskilful  navigation  or  gross  want  of 
care,  cause  disaster  or  death,  should  be  as  much  amenable  to  the 
local  law  as  those  navigating  our  own  vessels,  instead  of  redress 
having  to  be  sought  in  the,  perhaps,  distant  country  of  the 
offender.  But  the  remedy  for  the  deficiency  of  the  law,  if  it  can 
be  made  good  consistently  with  international  law — as  to  which 


TKRRITORIAL    JURISDICTION   OF    NATIONS.  41 

we  are  not  called  upon  to  pronounce  an  opinion — should  be  sup- 
plied by  the  action  of  the  Legislature,  with  whom  the  respon- 
sibility for  any  imperfection  of  the  law  alone  rests,  not  bv  a 
usurpation  on  our  part  of  a  jurisdiction  which,  without  legisla- 
tion, we  do  not  judicially  possess.  This  matter  has  been  some- 
times discussed  upon  the  assumption  that  the  alternative  of  the 
non-exercise  of  jurisdiction  on  our  part  must  he  the  total  impunity 
of  foreigners  in  respect  of  collision  arising  from  negligence  in  the 
vicinity  of  our  coast.  But  this  is  a  mistaken  view.  If  by  the 
assent  of  other  nations  the  three-mile  belt  of  sea  has  been  brought 
under  the  dominion  of  this  country,  so  that  consistently  with  the 
right  of  other  nations  it  may  be  treated  as  a  portion  of  British 
territory,  it  follows,  as  a  matter  of  course,  that  Parliament  can 
legislate  in  respect  of  it.  Parliament  has  only  to  do  so,  and  the 
judges  of  the  land  will,  as  in  duty  bound,  apply  the  law  which 
Parliament  shall  so  create.  The  question  is,  whether  legislative 
action  shall  be  applied  to  meet  the  exigency  of  the  case,  or  judicial 
authority  shall  be  strained  and  misapplied  in  order  to  overcome 
the  difficulty.  The  responsibility  is  with  the  Legislature,  and 
there  it  must  rest. 

Having  arrived  at  this  conclusion,  it  becomes  necessary  to 
■consider  the  second  point  taken  on  the  part  of  the  Crown,  namely, 
that  though  the  negligence  of  which  the  accused  was  guilty 
occurred  on  board  a  foreign  ship,  yet,  the  death  having  taken 
place  on  board  a  British  ship,  the  offence  was  committed  within 
the  jurisdiction  of  a  British  Court  of  Justice.  This  is  the  point 
insisted  on  by  my  Brothers  Denman  and  Lindley,  with  the  some- 
what hesitating  and  reluctant  assent  of  the  Lord  Chief  Justice  of 
the  Common  Pleas.  I  dissent  altogether  from  their  opinion.  In 
considering  this  question  it  is  necessary  to  bear  in  mind — which 
I  am  disposed  to  think  has  not  always  been  done — that  we  must 
deal  with  this  part  of  the  case  without  any  reference  to  the  theorv 
of  the  three-mile  zone,  and  (as  was  very  properlv  admitted  by 
the  Solicitor  General)  as  though  the  two  ships  had  met,  and  the 
occurrence  had  happened,  on  the  ocean.  The  argument  rests 
mainly  on  the  authority  of  Reg.  v.  Cooinbcs  (i  Leach  C.  C.  388), 
in  which,  on  a  trial  for  a  nnirder,  under  an  Admiralty  Commission 
it  was  held  by  all  the  judges  that,  where  a  shot  had  been  fired 
from  the  shore  at  a  person  in  a  vessel  on  the  sea,  and  had  killed 
him,  as  the  death  took  place  on  the  sea,  the  offence  was  properlv 
cognisable  under  an  Admiralty  Commission.  The  case  of  the 
lUiited  States  v.  Davis  (2  Sumn.  Rep.  482)  is,  in  like  manner,  an 


42  PRIVATE     INTERNATIONAL    LAW. 

authority  in  favour  of  the  view  that  where  a  person,  firing  a  gun 
from  a  ship  lying  in  the  waters  of  a  foreign  state,  kills  a  person 
on  board  another  ship,  lying  in  such  waters,  the  offence  is  in 
point  of  law  committed  on  board  the  latter ;  and  that,  conse- 
quently, the  person  causing  the  death  is  amenable  to  the  local 
law,  and  not  to  that  of  the  country  to  which  his  ship  belongs. 
The  defendant  was  indicted  before  a  Circuit  Court  of  the  United 
States  for  manslaughter.  He  was  the  master  of  an  American 
ship,  lying  in  the  harbor  of  Raiatia,  one  of  the  Society  Islands. 
A  disturbance  having  arisen  on  board  the  ship,  the  defendant 
took  his  gun  in  hand,  and  the  gun  going  oft' — whether  fired 
purposely  or  not  was  uncertain — a  man  on  board  another  vessel 
was  unintentionally  killed.  The  Court  held,  on  the  authority  of 
Coombes'  case  (i  Leach  C.  C.  388)  that  the  offence,  if  any,  had 
been  committed  on  a  foreign  vessel  in  the  jurisdiction  of  a  foreign 
government,  and  that  an  American  Court  had,  therefore,  no  juris- 
diction to  try  him.  The  ratio  decidendi  in  these  cases  does  not 
appear  in  the  reports,  and  it  becomes  desirable,  therefore,  to  see 
by  what  principle  the  decision  in  such  a  case  should  be  governed. 
Now,  homicide,  whether  it  takes  the  form  of  murder  or  of  man- 
slaughter, necessarily  involves  two  things  essentially  distinct — 
the  act  of  the  party  killing,  as  the  cause  of  the  death,  and  the 
death  of  the  party  killed,  as  the  effect  of  such  act.  Both  are 
-  necessary  to  constitute  the  crime.  But  it  is  obvious  that  the  act 
of  the  party  killing  may  take  place  in  one  jurisdiction,  the  death 
of  the  party  killed  in  another.  A  person  may  be  wounded  on 
the  sea,  and  may  die  on  the  shore,  or  z'ice  versa.  He  may  be 
wounded  in  England ;  he  may  die  in  Scotland.  In  which  is  the 
offence  committed  ?  As  the  blow  was  struck  in  the  one,  while 
the  death,  without  which  the  offence  is  not  complete,  took  place 
in  the  other,  I  answer,  in  neither ;  and  the  old  authorities  who 
held  at  common  law,  before  the  difficulty  arising  from  divided 
jurisdictions  had  been  got  over  by  express  legislation,  that  where 
the  wound  was  inflicted  on  the  sea,  and  the  person  struck  died 
on  the  shore,  or  7'ice  versa — or  where  the  wound  was  inflicted  in 
one  county,  and  the  death  took  place  in  another — the  offender 
could  be  tried  in  neither,  because  in  neither  had  the  entire  offence 
been  committed — reasoned,  in  my  opinion,  logically,  and,  in 
point  of  principle,  rightly.  These  cases  are  not,  however,  in 
point  to  the  one  before  us,  and,  if  I  advert  to  them,  it  is  only  to 
clear  the  way  as  I  advance.  We  have,  in  this  instance,  not  the 
case  of  the  blow  or  wound  in  one  jurisdiction,  and  the  death  in 


TERRITORIAL    JURISDICTION   OF    NATIONS.  45 

another;  but  as  in  Reg.  v.  Coombcs  (  i  Leach  C.  C.  388),  one  in 
which  the  act  causing  the  death  begins  in  one  jurisdiction  and 
extends  into  another,  in  which  it  inflicts  the  ])low  or  wound,  from 
which,  as  its  cause,  death  ensues.  When  a  man  strikes  a  blow 
with  a  chib,  or  inflicts  a  wound  by  the  thrust  of  a  sword,  or  the 
stab  of  a  knife,  or  blows  out  another's  brains  by  putting  a  pistol 
to  his  head,  the  act  takes  effect  immediately.  If  he  hurls  a  stone 
or  discharges  a  bullet  from  a  gun  or  pistol  at  another  person,  at 
a  distance,  the  instrument  he  uses  passes  from  him  ;  the  stone  or 
bullet,  having  left  his  hand,  has  to  make  its  way  through  a  given 
space  before  it  strikes  the  blow  it  is  intended  to  inflict.  But  the 
blow  is  as  much  the  act  of  him  who  casts  the  stone,  or  fires  the 
gun,  as  though  it  had  taken  effect  immediately.  In  such  a  case 
the  act,  in  lieu  of  taking  effect  immediately,  is  a  continuing  act 
till  the  end  has  been  effected — that  is,  till  the  missile  has  struck 
the  blow,  the  intention  of  the  party  using  it  accompanying  it 
throughout  its  course.  The  act  must  be  taken  to  be  the  act  of 
the  party  in  the  effects  it  was  intended  to  produce,  till  its  agency 
has  become  exhausted  and  its  operation  has  ceased.  When, 
therefore,  a  person  being  in  one  jurisdiction  fires  a  shot  at  a 
person  who  is  in  another,  as  was  the  case  in  Reg.  v.  Coombcs 
(i  Leach  C.  C.  388),  it  may  well  be  held  that  the  blow  struck  by 
the  bullet  is  an  act  done  in  the  jurisdiction  in  which  the  bullet 
takes  effect.  Reg.  v.  C combes  ( i  Leach  C.  C.  388)  was  therefore, 
in  my  opinion,  rightly  decided  ;  and  I  think  the  same  principle 
would  apply  where  the  master  of  a  vessel  purposely  ran  down 
another,  and  by  so  doing  caused  the  death  of  a  person  on  board. 
For,  though  his  immediate  act  is  confined  to  running  his  ship 
against  the  other,  it  is.  nevertheless,  his  act  which  causes  the 
ship  run  down  to  sink.  It  is  as  much  his  act  which  causes  the 
death  of  the  person  drowned,  as  though  he  had  actually  thrown 
such  person  into  the  water.  If,  therefore,  the  defendant  had 
purposely  run  into  the  Strathclyde,  I  should  have  been  prepared 
to  hold  that  the  killing  of  the  deceased  was  his  act  where  the 
death  took  place,  and.  consequently,  that  the  act — in  other  words, 
the  offence  of  which  he  has  been  convicted — had  been  committed 
on  board  a  British  ship.  Whether  the  same  principle  would 
apply  to  a  case  of  manslaughter,  arising  from  the  running  down 
of  another  ship  through  negligence,  or  to  a  case  where  death 
is  occasioned  by  the  careless  discharge  of  a  gun.  may.  indeed, 
admit  of  doubt.  For,  in  such  a  case,  there  is  no  intention  accom- 
panying the  act  into  its  ulterior  consequences.     The  negligence 


44  PRIVATE     INTERNATIOKAL    LAW. 

in  running  down  a  ship  may  be  said  to  be  confined  to  the  improper 
navigation  of  the  ship  occasioning  the  mischief ;  the  party  guilty 
of  such  neghgence  is  neither  actually,  nor  in  intention,  and  thus 
■constructively,  in  the  ship  on  which  the  death  takes  place.     But 
let   use  assume  the  contrary :   let  us  take  the   drowning  of  the 
■deceased  to  have  been  the  act  of  the  defendant  done  on  board  a 
British  vessel.     Is  this  conclusive  of  the  question?     By  no  means. 
The  subtle  argument  which   would  extend  the  negligence  com- 
mitted in  one  ship  to  another  in  which  it  produces  its  effect,  finds 
its  appropriate  answer  in  reasoning,  which,  though  perhaps  also 
savouring  of  subtlety,  is  yet  directly  to  the  purpose,  and  must  not 
"be  overlooked.     For  the  question  is — and  this  appears  to  me  to 
have  been  lost  sight  of  in  the  argument — not  whether  the  death 
of  the  deceased,  which  no  doubt  took  place  in  a  British  ship,  was 
the  act  of  the  defendant  in  such  ship,  but  whether  the  defendant, 
at  the  time  the  act  was  done,  was  himself  within  British  jurisdic- 
tion.    But,  in  point  of  fact,  the  defendant  was,  at  the  time  of  the 
occurrence,  not  on  board  the  British  ship,  the  Strathclydc,  but  on 
a  foreign  ship,  the  Franconia.    And  here  we  must  remember  that, 
ex  hypothesi,  we  have  to  deal  with  the  case  on  the  assumption 
that  both  the  vessels  were  on  the  high  seas,  and  not  in  British 
waters.     But,  though,  as  we  have  just  seen,  an  act,  begun  in  one 
place  or  jurisdiction,  may  extend  into  another,  it  is  obvious  that 
the  person  doing  such  continuing  act  cannot  himself  be  at  the 
time  in  both.     A  man  who,  being  in  field  A,  throws  a  stone  at 
another,  who  is  in  field  B,  does  not  thereby  transfer  himself  to  the 
latter.     A  man  who  fires  a  shot  from  the  shore  at  one  who  is  on 
the  sea  still  remains  on  the  shore,  and  vice  versa.    One  who,  from 
the  bank  of  a  river  dividing  two  territories,  fires  a  rifle  shot  at  a 
person  on  the  opposite  side,  cannot  be  said  to  be  in  the  terri- 
tory where  the  shot  strikes  its  object.    One  who  from  the  deck  of 
a  vessel,  by  the  discharge  of  a  gun,  either  purposely  or  through 
negligence,  kills  or  w^ounds  another,  is  not  thereby  transported 
from  the  deck  of  his  own  vessel  to  that  of  the  other.    But,  in  order 
to  render  a  foreigner  liable  to  the  local  law,  he  must,  at  the  time 
the  offence  was  committed,  have  been  within  British  territory  if  on 
land,  or  in  a  British  ship  if  at  sea.     I  cannot  think  that  if  two 
ships  of  different  nations  met  on   the  ocean,  and  a  person   on 
board  of  one  of  them  were  killed  or  wounded  by  a  shot  fired 
from  the  other,  the  person  firing  it  would  be  amenable  to  the  law 
of  the   ship   in   which   the   shot   took   effect.     According  to  the 
doctrine  of  Lord  Coke  in  Calvin's  case  (4  Co.  R.  i),  protection 


TERKITORIAL    JURISDICTION   OF    NATIONS.  45 

and  allegiance  are  co-relative ;  it  is  only  where  protection  is 
afforded  by  the  law  that  the  obligation  of  allegiance  to  the  law 
arises  ;  or,  as  I  prefer  to  put  it,  it  is  only  for  acts  done  when  the 
person  doing  them  is  within  the  area  over  which  the  authority  of 
Britisii  law  extends,  that  the  subject  of  a  foreign  state  owes 
obedience  to  that  law,  or  can  be  made  amenable  to  its  jurisdiction. 
But  for  the  opinion  expressed  by  Brother  Denman,  I  should 
have  thought  it  beyond  all  dispute  that  a  foreign  ship,  when  not 
in  British  waters,  but  on  the  high  seas,  was  not  subject  to  our 
law^  Upon  this  point  I  had  deemed  all  jurists  unanimous,  and 
could  not  have  supposed  that  a  doubt  could  exist.  Upon  what  is 
the  contrary  opinion  founded?  Simply  upon  expediencey,  which 
is  to  prevail  over  principle.  What,  it  is  asked,  is  to  happen  if  one 
of  your  officers,  enforcing  your  revenue  laws,  should  be  killed  or 
injured  by  a  foreigner  on  board  a  foreign  ship?  What  is  to 
happen  if  a  British  and  foreign  ship  meeting  on  the  ocean,  a 
British  subject  should  be  killed  by  a  shot  fired  from  the  foreign 
ship?  In  either  of  such  cases  would  not  the  foreigner  guilty  of 
the  offence  be  amenable  to  the  English  law  ?  Could  it  be  endured 
that  he  should  escape  with  impunity?  If  brought  within  the 
reach  of  a  British  court  of  Justice,  could  he  not  be  tried  and 
punished  for  the  offence,  and  ought  he  to  be  permitted  to  escape 
with  impunity,  or  ought  he  not  to  be  tried  and  punished  for  such 
offence?  My  first  answer  is,  that  the  alternative  is  fallacious. 
He  will  not  escape  with  impunity.  He  will  be  amenable  to  the 
law  of  his  own  country,  and  it  is  not  to  be  presumed  that  the  law 
of  any  civilised  people  will  be  such,  or  so  administered,  as  that 
such  an  offence  should  escape  without  its  adequate  punishment. 
As  regards  the  amenability  of  the  offender  under  such  circum- 
stances to  our  own  law,  it  will  be  time  enough  to  determine  the 
question  when  the  case  arises.  If  the  conviction  and  punishment 
of  the  oft'ender  can  only  be  obtained  at  the  sacrifice  of  fundamental 
principles  of  established  law,  I,  for  one,  should  prefer  that  justice 
should  fail  in  the  individual  case,  than  that  established  principles, 
according  to  which  alone  justice  should  be  administered,  should 
be  wrested  and  strained  to  meet  it.  I  think,  therefore,  that  it  is 
not  enough  that  the  running  down  of  the  Strathclydc,  and  so  caus- 
ing the  death  of  the  deceased,  can  be  said  to  have  been  the  act  of 
the  defendant  on  board  the  latter  vessel,  unless  it  can  be  made  out 
that  the  defendant  was  also  on  board  of  it.  But  the  defendant 
certainly  was  not  actually,  nor  do  I  think — no  intention  on  his 
part  having  accompanied  the  act — he  can  be  said  to  have  been. 


46  PRIVATE     INTERNATIONAL    LAW. 

in  any  sense,  constructively,  on  board  the  Strathcl^de.  If,  there- 
fore, his  own  vessel  was  not  within  British  Waters,  but  on  the 
high  seas,  he  owed  no  obedience  to  the  law  of  this  country,  and 
cannot  be  punished  for  an  infraction  of  it.  In  the  case  of  United 
States  V.  Davis  (2  Sumn.  Rep.  482),  no  such  difficulty  presented 
itself.  Both  ships  were  in  the  harbour,  and  therefore  in  the  water 
of  the  local  state,  and  the  defendant  was  consequently  amenable 
to  the  local  law.  I  am  aware  that  this  view  is  not  in  accordance 
with  the  decision  in  the  American  case  of  Adams  v.  The  People  (i 
Comstock's  Rep.  173).  In  that  case  a  fraud  had  been  committed 
,at  New  York  by  the  defendant,  a  citizen  of  the  state  of  Ohio,  and 
residing  in  it,  through  an  agent  at  New  York,  who  was  wholly 
innocent  and  ignorant  of  the  fraud.  The  accused  set  up  as  a 
'defence  that  he  was  a  citizen  of  another  state,  and  residing  in  it 
when  the  alleged  offence  was  committed,  and  therefore  not  subject 
to  the  law  of  New  York;  but  the  objection  was  overruled,  on  the 
iground  that  a  criminal  act  done  through  the  instrumentality  of 
,an  innocent  agent  is  in  law  the  act  of  the  principal,  who  may, 
therefore,  be  held  to  have  committed  the  offence  in  the  state  in 
which  the  act  was  done,  and,  being  found  in  that  state,  will  be 
liable  to  be  there  tried  and  punished.  Both  exceptions  taken 
on  the  part  of  the  Crown  to  the  general  rule  that  a  foreigner, 
•committing  an  off'ence  out  of  the  jurisdiction  of  a  country  which 
is  not  his  own,  cannot  be  brought  to  trial  in  the  courts  of  the 
iormer,  thus  failing,  it  appears  to  me  that  the  general  rule  must 
prevail,  and  that  the  defendant,  having  been  a  foreign  subject,  on 
board  a  foreign  ship,  on  a  foreign  voyage,  and  on  the  high  seas  at 
the  time  the  offence  was  committed,  is  not  amenable  to  the  law  of 
this  country ;  that  there  was,  therefore,  no  jurisdiction  to  try  him, 
and  that,  consequently,  the  conviction  was  illegal,  and  must  be 
quashed. 

(In  consequence  of  this  decision,  Parliament  passed  the  St. 
of  41  and  42  Vict.  c.  73.  By  that  act  it  was  declared  that,  "for 
the  purpose  of  any  offense  declared  by  this  act  to  be  within  the 
jurisdiction  of  the  Admiral,  any  part  of  the  open  sea  within  one 
marine  league  of  the  coast  measured  from  low-water  mark  shall 
be  deemed  to  be  the  open  sea  within  the  territorial  waters  of  her 
Majesty's  dominions.")^ 

"Territorial  Limits  of  the  United  States. — The  territorial  limits  of  the 
United  States,  where  it  borders  on  the  ocean,  are  determined  by  the  law 
of  nations,  and  by  that  law  it  has  been  held  to  extend  into  the  ocean  the 
distance  of  a  marine  league,  or  about  three  and  a  half  English  miles.  The 
<listance  is  measured  from  low-water  mark.     Bays  and  other  arms  of  the 


TERRITORIAL    JURISDICTION    OF    NATIONS.  47 

sea  wholly  wilhin  the  territory  of  a  country,  not  exceeding  two  marine 
leagues  in  width  at  the  mouth,  are  within  the  territorial  limits.  The  Dela- 
ware and  Cliesapeake  Bays  are  claimed  to  be  within  the  jurisdiction  of 
the  United  States.  Manchester  v.  Massachusetts,  139  U.  S.  240,  33  Sup.  Ct. 
Rep.  159. 

As  a  rule  a  nation  has  full  jurisdiction  and  control  over  all  persons 
and  things  within  its  boundaries,  but  by  the  comity  of  nations  certain 
aliens  bring  their  native  laws  with  them.  This  privilege  is  conceded 
especially  (i)  to  sovereigns  traveling  al)road  with  their  trains;  (2)  to 
ambassadors,  their  suite,  family,  and  servants;  and  (3)  to  the  ofificers  and 
crews  of  public  vessels  (not  private  vessels)  in  foreign  ports,  and  to 
armies  in  their  permitted  transit  through  foreign  territory.  Wools.  Int. 
Law,  Sec.  68. 

Diplomatic  agents,  such  as  ambassadors,  legates,  envoys,  etc.,  repre- 
sent their  governments,  aiul  in  order  that  they  may  exercise  their  diplo- 
matic functions  freely,  they  can  neither  be  sued  in  the  civil  Courts  nor 
arrested  and  tried  for  any  breach  of  the  criminal  laws.  They  may  be 
ordered  to  leave  the  country.  Hall  Inf.  L.  P.  169:  Coppell  v.  Hall,  7  IVall. 
542;  Davis  V.  Packard,  7  Pet.  276;  In  re  Baiz,  133  U.  S.  403. 

State  Limits. — The  states  bordering  on  the  ocean  extend  out,  as  does 
the  United  States,  the  distance  of  a  marine  league  from  the  shore  Those 
states  bordering  on  the  Great  Lakes  extend  to  the  boundary  line  between 
the  United  States  and  Canada.  Where  states  are  divided  by  rivers,  the 
jurisdiction  of  each  state  extends  to  the  middle  of  the  stream.  However, 
there  are  exceptions  to  this  rule.  The  Hudson  River,  between  New  York 
and  New  Jersey,  is  wholly  within  the  jurisdiction  of  New  York.  The 
Ohio  River,  between  Ohio  and  Kentucky,  is  wholly  in  Kentucky.  The 
states  bordering  on  the  Mississippi  River  which  were  formed  out  of  the 
Northwest  Territory  have  concurrent  jurisdiction  over  the  whole  river. 
Cotn.  V.  Peters,  12  Met.  (Mass.)  387:  Com.  v.  Manchester,  132  Mass.  230. 
23  Am.  St.  Rep.  820:  Booth  z'.  Hubbard,8  Chio  St.  244,Statev.  Babcock.  30 
N.  J.  L.  29;  Manchester  v.  Massachusetts,  139  U.  S.  240,  33  Sup.  Ct.  Rep. 
159- 

County  Limits. — Counties  bordering  on  the  high  seas  did  not  at  com- 
mon law  extend  to  the  state  limits,  but  ended  at  the  water  line.  A  state 
may  extend  the  limits  of  its  counties  so  as  to  coincide  with  its  own  limits; 
and  this  has  been  done  in  some  states.  Manlcy  v.  People,  7  N.  Y.  293; 
Biscoc  V.  State,  68  Md.  204:  Com.  v.  Peters,  12  Met.  387;  Manchester  v. 
Mass.,  139  U.  S.  240,  33  Sup.  Ct.  Rep.  139. 

Ships  on  the  High  Seas. — The  public  and  private  vessels  of  every 
nation  on  the  high  seas,  and  out  of  the  territorial  limits  of  any  other  slate, 
are  subject  to  the  jurisdiction  of  the  state  to  which  they  belong.  Such 
vessels  are  regarded  as  part  of  the  territory  of  the  nation  under  whose 
flag  they  sail.  A  foreign  merchant  vessel,  while  within  state  limits,  is 
subject  to  the  laws  of  the  state,  and  is  within  the  jurisdiction  of  its  Courts, 
and  crimes  committed  on  such  vessels,  although  between  foreigners,  are 
withing  the  control  of  the  state  unless  a  treaty  provides  otherwise.  This 
is  not  true  of  a  war  ship;  a  war  vessel  carries  its  own  nationality  with 
it  wherever  it  goes,  and  it  is  considered  a  part  of  the  soil  of  the  country  to 
which  it  belongs.  A  war  vessel,  while  in  a  foreign  port,  is  not  subject  to 
the  laws  of  that  country. 

Jurisdiction  to  punish  for  crimes  committed  on  American  ships  on  the 
high  seas  and  in  foreign  ports  is  conferred  by  act  of  Congress  on  the  Fed- 
eral Courts.  The  state  Courts  can  not  take  jurisdiction  unless  the  crime 
was  committed  within  state  limits.  If  the  vessel  is  a  private  one,  and  in 
a  foreign  port,  it  is  also  subject  to  the  laws  of  the  foreign  country.     United 


48  PRIVATE    INTERNATIONAL    LAW, 

States  V.  Holmes,  5  Wheat.  412;  United  States  v.  Palmer,  s  Wheat.  610; 
People  V.  Curtis,  50  N.  Y.  321,  10  Am.  Rep.  4S3. 

By  treaties  with  non-Christian  countries,  our  consuls  residing  there 
have  jurisdiction  over  our  citizens  who  have  committed  offenses  within  the 
jurisdiction  of  such  countries.  The  object  is  to  withdraw  citizens  of  the 
United  States  from  the  operation  cf  crude  and  barbarous  systems  of  jus- 
tice there  prevailing.     In  re  Ross,  140  U.  S.  453,  35  Sup.  Ct.  Rep.  581. 

The  l^rent  case,  in  1862,  illustrates  the  law  as  to  a  private  vessel  on 
the  high  seas.  In  this  case,  Commodore  Wilkes,  of  the  San  Jacinto,  a  pub- 
lic vessels  of  the  United  States,  removed  Messrs.  Mason  and  Slidell  from 
a  British  private  vessel  on  the  high  seas.  England  said  her  rights  were 
violated,  and  insisted  that  Mason  and  Slidell  should  be  returned.  This 
was  complied  with. by  our  government.  Although  Mason  and  Slidell  were 
not  British  subjects,  yet  we  had  no  authority  to  arrest  them  on  a  British 
private  vessel  on  the  high  seas.  If  the  British  vessel  was  in  an  American 
port  our  authority  would  be  unquestioned  unless  we  had  surrendered  this 
right  by  treaty. 

In  the  case  of  Wildenhus,  120  U.  S.  i,  one  member  of  a  foreign  crew 
on  a  foreign  ship  killed  a  fellow  sailor  while  the  ship  was  in  the  port  of 
Jersey  City,  New  Jersey.  The  defendant  was  imprisoned  by  the  authority 
of  the  laws  of  the  state  cf  ISlcw  Jersey.  The  consul  of  Belgium  applied 
for  the  release  of  IVi'.denhus,  claiming  that  the  law  of  his  country  should 
punish  the  offense,  and  not  the  laws  of  New  Jersey.  The  Supreme  Court 
of  the  United  States  in  dccidmg  the  case  held  as  follows:  "It  is  part  of 
the  law  of  civilized  nations  that  when  a  merchant  vessel  of  one  country 
enters  the  ports  of  another  for  the  purposes  of  trade,  it  subjects  itself  to 
the  laws  of  the  place  to  which  it  goes,  unless  by  treaty  or  otherwise  the 
two  countries  have  come  to  some  different  understanding  or  agreement. 
*  *  *  Disorders  which  disturb  only  the  peace  of  the  ship  or  those  on 
board,  are  to  be  dealt  with  exclusively  by  the  sovereignty  of  the  home  of 
the  ship,  but  those  which  disturb  the  public  peace  may  be  suppressed,  and, 
if  need  be,  the  offenders  punished  by  the  proper  authorities  of  the  local- 
jurisdiction.  It  may  not  be  easy  at  all  times  to  determine  to  which  of  the 
two  jurisdictions  a  particular  act  of  disorder  belongs.  Much  will  undoubt- 
edly depend  on  the  attending  circumstances  of  the  particular  case,  but  all 
must  concede  that  felonious  homicide  is  a  subject  for  the  local  jurisdiction, 
and  that  if  the  proper  authorities  are  proceeding  with  the  case  in  a  regular 
way,  the  consul  has  no  right  to  interfere  to  prevent  it."  The  Court  thus, 
sustained  the  right  of  the  state  to  punish  this  offender. 

In  the  case  of  United  States  v.  Rodgers,  150  U.  S.  24-1,  (18Q3),  where 
a  person  was  indicted  in  the  United  States  District  Court  for  assaulting 
with  a  dangerous  weapon  a  man  on  board  the  steamer  Alaska,  an  Ameri- 
can boat,  and  then  being  on  the  Canadian  side  of  the  Detroit  River,  the 
Court  decided  that  "the  Great  Lakes  were  high  seas,  and  that  the  Courts 
of  the  United  States  have  jurisdiction  to  try  a  person  for  such  an  offense 
when  such  vessel  is  in  the  Detroit  River,  out  of  the  jurisdiction  of  any 
particular  state,  and  within  the  territorial  limits  of  the  Dominion  of 
Canada."  The  Canadian  authorities  would  also  have  authority  to  punish 
such  offense,  and  if  the  crime  was  committed  on  the  Michigan  side,  the 
Michigan  Courts  would  have  jurisdiction. 

As  to  jurisdiction  over  foreign  ships  in  territorial  waters,  see  article 
by  Charles  Jl'.  Gregory,  Afichigaii  Laic  Revie-cC.  February,  1004,  Page  333. 

Criminal  Prosecution  for  Acts  Committed  Without  the  State. — The 
states  of  the  Union  ceded  to  the  United  States  all  diplomatic  authority, 
therefore  they  cannot  be  regarded  as  nations  in  the  full  sense  of  that  term, 
yet  they  are  sovereign  as  regards  their  own  internal  affairs.  They  retain 
all   the  rights  incident  to   sovereignty   which   have  not   been   ceded  to  the 


TERRITORIAL    JURISDICTION    OF    NATIONS.  49 

Federal  government.  Have  the  states  jurisdiction  over  crimes  committed 
abroad?  Some  Courts  have  decided  that  they  have,  others  that  tlicy  have 
not. 

In  tlie  case  of  People  v.  Merrill,  3  Parker's  Cr.  Rcf.  (N.  V.)  390, 
({S33),  the  Court  held  that  "a  state  has  no  jurisdiction  of  crimes  com- 
mitted beyond  its  territorial  limits."  In  this  case  Merrill  and  another  took 
a  free  negro,  an  inhabitant  of  New  York,  into  the  District  of  Columbia 
and  sold  him  as  a  slave.  .Merrill  was  indicted  in  New  York  for  the  sale 
made  in  the  District  of  Columbia.  Such  a  sale  was  lawful  in  the  District 
of  Columbia  but  unlawful  in  the  state  of  New  York.  "Every  statute," 
the  Court  said,  "is  presumed  to  be  enacted  with  reference  to  the  local 
jurisdiction  of  the  legislature  of  each  state." 

"To  give  it  a  broader  construction,  and  make  it  applicable  to  a  sale 
or  transfer  made  in  another  state,  would  make  it  repugnant  to  the  Con- 
stitution of  the  United  States  {Amendment,  Art.  6),  which  declares  that 
in  criminal  prosecutions  the  accused  shall  enjoy  the  right  of  a  speedy 
and  public  trial  by  an  impartial  jury  of  the  state  and  district  wherein 
the  crime  shall  have  been  committed ;  and  also,  Art.  4,  Sec.  2,  of  the  Con- 
stitution of  the  United  States,  which  declares  that  the  citizens  of  each 
state  shall  be  entitled  to  all  the  immunities  of  the  citizens  of  the  several 
states;  and  provides  that  a  person  charged  in  any  state  with  treason,  or 
felony,  or  other  crime,  who  shall  flee  from  justice,  or  shall  be  found  in 
another  stfite,  shall,  on  demand  of  the  executive  authority  of  the  stale 
from  which  he  fled,  be  delivered  up  to  be  removed  to  the  state  having 
jurisdiction  of  the  crime."  [It  will  be  noticed  that  the  above  case  holds 
that  the  Si.xvh  Amendment  to  the  Constitution  of  the  United  States  limits 
the  powers  of  the  states.  The  Supreme  Court  of  the  United  States  ha 
decided  that  the  first  eight  amendments  are  limitations  upon  the  Federal 
government  and  not  upon  the  states.  Sec  Eilenbecker  v.  Plymouth  County, 
134  (J.  S.  31  (1800):  Baron  v.  Baltimore.  7  Pet.  (U.  S.)  243  (1833); 
Tii'itcliell  V.  Com.,  7  ll'all.  321  (1868) ;  Fox  v.  Ohio,  5  Hoii.'ard  410.     Ed.] 

In  the  case  of  State  v.  Main.  16  JVis.  422,  the  Court  said:  "Although 
it  is  true  as  a  general  proposition,  that  the  laws  of  a  stale  have  no  force 
outside  of  its  territorial  limits,  it  is  equally  true  that  every  state  may,  in 
the  regulation  of  its  own  internal  affairs,  authorize  certain  acts  to  be  done 
outside  of  its  limits,  and  describe  what  effect  they  shall  have  within.  Thus 
it  pertains  to  every  state  to  prescribe  in  what  manner  title  to  real  estate 
within  it  shall  be  transferred." 

The  question  here  was  whether  the  state  law  giving  soldiers  the  priv- 
ilege of  voting  when  out  of  the  state  was  valid.  Court  held  it  valid.  And 
as  to  the  state  punishing  those  who  were  guilty  of  illegal  voting  under 
such  circumstances,  the  Court  said:  "It  seems  to  be  well  established  that 
every  nation  has  the  right  to  punish  its  own  citizens  for  the  violation  of  its 
laws  wherever  committed.  This  right  is  based  upon  the  duty  of  allegiance. 
The  offender,  of  course,  must  be  afterwards  found  within  the  state.  It 
would  not  apply  to  citizens  of  other  states." 

Judge  Bronson  in  Adams  v.  People,  i  Corns.  (N.  Y.)  173,  said:  "It 
does  not  occur  to  me  that  there  are  more  than  two  cases  where  the  ques- 
tion of  allegiance  can  have  anything  to  do  with  a  criminal  prosecution. 
First,  when  the  accused  is  charged  with  a  breach  of  the  duty  of  allegiance, 
as  in  case  of  treason  ;  and  Second,  when  the  government  proposes  to  pun- 
ish offenses  committed  by  its  own  citizens  beyond  the  territorial  limits  of 
the  state. 

"If  the  citizen  could  pass  beyond  the  limits  of  his  country  and  commit 
crimes  against  his  country,  and  afterwards  return  into  it  and  laugh  to 
scorn  its  power  of  punishment,  because  the  offense  was  committed  outside 


50  PRIVATE     INTERNATIONAL    LAW. 

of  it,  the  power  of  every  nation  to  defend  itself  against  treachery  would 
be  seriously  impaired." 

The  case  of  Hanks  v.  The  State,  13  Texas  Ct.  of  Appeals  289  {1882), 
is  a  later  decision  on  this  question.  In  this  case  Hanks  and  one  P.  F.  Dill- 
man  were  jointly  indicted  in  the  District  Court  of  Travis  County  for  the 
forgery  of  a  transfer  of  a  land  certificate  for  a  league  and  labor  of  land  in 
the  state  of  Texas.  It  is  alleged  in  the  indictment  that  the  acts  consti- 
tuting the  forgery  were  all  committed  in  Caddo  Parish,  in  the  state  of 
Louisiana.  No  act  or  thing  connected  with  the  execution  of  the  forgery 
is  charged  to  have  been  done  in  Texas;  but  the  crime  and  injury,  so  far 
as  this  state  is  concerned,  are  averred  to  consist  in  the  fact  that  the  saidi 
forgery  in  Louisiana  did  then  and  there  relate  to  and  affect  an  interest  in 
land  in  the  state  of  Texas. 

It  was  made  a  ground  both  in  the  motion  to  quash  the  indictment 
and  in  arrest  of  judgment,  and  is  again  urgently  insisted  upon  in  the  able 
brief  of  counsel  for  ippellant,  that  the  facts  alleged,  if  true,  would  con- 
stitute an  offense  against  the  sovereign  state  of  Louisiana  alone,  and  one 
of  which  the  Courts  of  this  state  would  have  no  jurisdiction.  In  deciding 
the  case,  the  Court  said :  "If  the  position  thus  assumed  in  behalf  of 
appellant  be  correct,  then  the  legislature  had  no  authority  to  pass  the  act 
quoted,  and  the  same  is  an  absolute  nullity.  Can  this  proposition  be 
maintained?  It  certainly  cannot  be  found  in  any  constitutional  inhibition, 
state  or  Federal,  depriving  the  legislature  of  the  authority,  and  unless  there 
is  some  authority  of  law  superior  to  the  right  of  a  state  legislature,  which 
could  and  should  control  the  action  of  the  latter  within  the  scope  of  its 
constitutional  powers,  we  cannot  well  conceive  how  its  enactments,  if 
reasonable  and  consistent  with  that  power,  could  be  hel  inoperative  and 
nugatory. 

"Two  authorities,  which  are  to  the  effect  that  the  legislature  of  one 
state  cannot  define  and  punish  crimes  committed  in  another  state,  are 
mainly  relied  upon.  The  leading  one  is  the  case  of  The  State  v.  Knight, 
taken  from  2  Haywood,  and  reported  in  Taylor's  North  Carolina  Reports, 
page  44.  The  other  is  People  v.  Merrill,  2  Parker's  Criminal  Reports  (N. 
Y.)  5go.  The  defendant  in  the  first  case  was  indicted  under  a  statute  the 
words  of  which  were :  'And  whereas  there  is  reason  to  apprehend  that 
wicked  and  ill-disposed  persons  resident  in  the  neighboring  states  make  a 
practice  of  counterfeiting  the  current  bills  of  credit  of  this  state,  and  by 
themselves  or  emissaries  utter  or  vend  the  same,  with  an  intention  to 
defraud  the  citizens  of  this  state :  Be  it  enacted,  etc.,  that  all  such  persons 
shall  be  subject  to  the  same  mode  of  trial,  and  on  conviction  liable  to  the 
same  pains  and  penalties  as  if  the  offense  had  been  committed  within  the 
limits  of  this  state  and  prosecuted  in  the  Superior  Court  of  any  district  of 
this  state.'  It  was  held  that  the  jurisdiction  to  try  in  North  Carolina  was 
doubtful,  and  the  prisoner  was  discharged. 

"Mr.  Wharton,  in  his  work  on  the  Conflict  of  Laws,  says :  'The  stur- 
diest advocates  of  the  hypothesis  that  the  locus  delicti  alone  confers  juri.s- 
diction  have  admitted  that  there  are  cases  in  which  a  person  whose  resi- 
dence is  outside  the  territory  may  make  himself,  by  conspiring  extra- 
territorially  to  defeat  its  laws,  infra-territorially  responsible.  If,  for 
instance,  a  forger  should  estal)lish  on  the  Mexican  side  of  the  boundary 
between  the  United  States  and  Mexico  a  manufactory  for  the  forgery  of 
United  States  securities,  for  us  to  hold  that  when  the  mischief  is  done 
he  can  take  up  his  residence  in  the  United  States  without  even  liability  to 
arrest,  would  not  merely  expose  our  government  to  spoliation,  but  bring 
its  authority  into  contempt.  To  say  that  in  such  a  case  the  Mexican  gov- 
ernment can  be  relied  upon  to  punish  is  no  answer;  because,  iirst,  in  coun- 
tries of  such  imoerfect  civilization,  penal  justice   is  uncertain;   secondly, 


TERRITORIAL   JURISDICTION    OF    NATIONS.  51 

in  cases  where,  in  such  country,  the  local  community  pains  greatly  hy  the 
fraud  anri  suffers  bv  it  no  loss,  the  chances  of  conviction  and  punishment 
would  be  peculiarly  slight;  and,  thirdly,  because  all  that  the  offender 
would  have  to  do  to  escape  justice  in  such  a  case  would  be  to  walk  over 
the  boundary  line  into  the  United  States,  where  on  this  hypothesis  he 
would  go  free,"  Ul'harton  ConHirt  of  Lazvs,  S-^c.  876).  Again  he  says: 
'Thus  it  has  been  held  that  the  originator  of  a  nuisance  to  a  stream  in 
one  country  which  affects  such  stream  in  another  country  is  liable  to 
prosecution  in  the  latter  country;  that  the  author  of  a  libel  uttered  by  him 
in  one  country  and  published  by  others  in  another  country,  from  which  he 
is  absent  at  the  time,  is  liable  in  the  latter  country;  that  he  who  on  one 
side  of  a  boundary  shoots  a  person  on  the  other  side  is  amenable  in  the 
country  where  the  blow  is  received;  that  he  who  in  one  state  employs  an 
innocent  agent  to  obtain  goods  by  false  pretenses  in  another  state  is 
amenable  in  the  latter  state;  and  that  he  who  sells  through  agents,  guilty 
or  innocent,  lottery  tickets  in  another  state  is  amenable  in  the  state  of 
the  sale,  though  he  was  absent  from  such  state  personally.  In  England  we 
have  the  same  principle  affirmed  by  the  highest  judicial  authority,'  and  he 
quotes  Lord  Campbell  as  saying,  'that  a  person  may,  by  the  employment  as 
well  of  a  conscious  as  of  an  unconscious  agent,  render  himself  amenable  to 
the  law  of  England  when  he  comes  within  the  jurisdiction  of  our  Courts;' 
and  Sir  R.  Phillimore  as  saying,  'It  is  a  monstrous  thing  that  any  technical 
rule  of  venue  should  prevent  justice  from  being  done  in  this  country  on 
a  criminal  for  an  offense  which  was  perpetrated  here,  but  the  execution  of 
which  was  concocted  in  another  country.'  {Wharton  Conflict  of  Lazvs,  Sec. 
877.  See  also  Adams  v.  People,  i  Com.  (N.  Y.)  173;  Com.  v.  Macloon, 
loi  Mass.  i;  Ham  v.  State,  4  Te.vas  App.  645;  Ex  Parte  Rogers,  10  Texas 
A  pp.  653). 

Mr.  Cooley,  in  his  great  work  on  Constitutional  Limitations,  treating 
of  territorial  limitation  to  legislative  authority,  says:  'The  legislative 
authority  of  every  state  must  spend  its  force  within  the  territorial  limits 
of  the  state.  *  *  *  j^  cannot  provide  for  the  punishment  as  crimes  of 
acts  committed  beyond  the  state  boundary,  because  such  acts,  if  offenses 
at  all,  must  be  offenses  against  the  sovereignty  within  wdiose  limits  they 
have  been  done.'  But,  after  laying  down  this  doctrine,  in  the  very  next 
sentence  he  says :  'But  if  the  consequences  of  an  unlawful  act  committed 
outside  the  state  have  reached  their  ultimate  and  injurious  result  within 
it,  it  seems  that  the  perpetrator  may  be  punished  as  an  offender  against 
such  state.'  (Cooky's  Const.  Lim.,  4  ed.,  pp.  154-5.)  If  this  latter  rule  be 
the  law,  then  it  is  a  solecism  to  say  that  the  legislature  cannot  so  declare 
it  by  express  enactment. 

Story,  in  his  Conflict  of  L.aii'S,  says:  ""rvitnougn  tne  penal  laws  of  every 
country  are  in  their  nature  local,  yet  an  offense  may  be  committed  in  one 
sovereignty  in  violation  of  the  laws  of  another,  and  if  the  offender  be 
afterwards  found  in  the  latter  state,  he  may  be  punished  according  to  the 
laws  thereof,  and  the  fact  that  he  owes  allegiance  to  another  sovereignty 
is  no  bar  to  the  indictment."    Story,  Conflict  of  Laws,  4  ed.,  Sec.  635b. 

The  court  held  that  the  state  has  authority  to  punish  such  an  act,  and 
that  for  forgery  committed  in  Louisiana  by  parties  there,  against  the  state 
of  Texas,  such  parties  are  criminally  responsible  to  the  state  of  Texas. 

Civil  Actions  for  Acts  Without  the  State. — The  case  of  McDonald  v. 
Mallory,  77  N.  Y.  546  (1S79),  covers  this  phase  of  the  question. 

This  action  was  brought  by  plaintitT  as  administratrix  of  Charles 
McDonald,  deceased,  to  recover  damages  for  his  death. 

The  complaint  alleged,  in  substance,  the  ownership  of  the  steamer 
"City  of  Waco"  by  the  defendants,  and  its  employment  as  a  freight  and 
passenger  vessel  trading  between  the  city  of  New  York  and  the  city  of 


52  PRIVATE    INTERNATIONAL    LAW. 

Galveston,  in  the  state  of  Texas ;  that  defendants  were  citizens  and  res- 
idents of  the  city  of  New  York,  and  said  steamer  was  registered  and 
belonged  in  the  port  of  New  York;  that  said  Charles  McDonald,  a  citizen 
of  the  state  of  New  York,  and  a  resident  in  the  city  of  Brooklyn,  was 
employed  on  the  steamer  as  a  fireman ;  that  the  steamer  received  on  board, 
at  New  York,  as  freight  to  be  carried  to  Galveston,  300  cases  of  petroleuni ; 
that  while  the  said  steamer  was  lying  at  anchor  on  the  high  seas,  outside 
the  the  harbor  and  bar  of  Galveston,  Texas,  a  fire  started  on  board  of  her, 
and  by  reason  of  the  presence  of  said  petroleum,  which  was  reached  by 
the  fire,  the  said  fire  could  not  be  extinguished,  and  the  death  of  plaintiff's 
intestate  was  caused  by  the  violence  of  said  fire,  and  by  the  culpable 
negligence  of  said  defendents. 

The  complaint  then  alleges  that  said  negligence  and  death  occurred 
within  the  territory  of  the  state  of  New  York,  to  wit :  at  the  city  of  New 
York,  and  on  board  said  steamer  belonging  to  the  state  of  New  York,  and 
being  at  first  at  the  city  of  New  York,  and  thereafter  on  the  high  seas, 
as  above  stated.  The  defendants  demurred  to  the  complaint,  on  the 
ground  that  the  court  had  no  jurisdiction  of  the  action. 

The  court  held  as  follows :  "Civil  rights  of  action  for  matters  occur- 
ring at  sea,  on  board  of  a  vessel  belonging  to  one  of  the  states,  must 
depend  upon  the  laws  of  that  state,  unless  they  arise  out  of  some  matter 
over  which  jurisdiction  has  been  vested  in  and  exercised  by  the  govern- 
ment of  the  United  States.  That  under  the  statute  of  this  state  (Laws  of 
New  York)  giving  a  right  of  action  for  causing  death  by  a  wrongfulact 
or  neglect,  an  action  was  maintainable  for  causing  the  death  of  a  citizen 
of  this  state  on  the  high  seas,  on  board  of  a  vessel  hailing  from  and  regis- 
tered in  a  port  within  the  state ;  the  vessel  being  at  the  time  employed  by 
the  owners  in  their  own  business,  and  their  negligence  having  caused  the 
death."    Judgment  for  plaintiff. 

It  was  decided  in  the  case  of  Crapo  v.  Kelly,  16  Wall.  (U.  S.)  610 
{1872),  that  the  private  vessel,  "Arctic,"  while  on  the  high  seas  was  a 
portion  of  the  territory  of  Massachusetts,  and  the  assignment  by  the 
insolvent  court  of  that  state  parsed  the  title  to  her,  in  the  same  manner 
and  with  the  like  efi^ect  as  if  she  had  been  physically  within  the  bounds 
of  that  state  when  the  assignment  was  executed. 

Laws  of  Newly  Acquired  Territory. — In  Blankard  v.  Galdy,  4  Mod. 
222  {1693),  the  plaintiff  was  provost  marshal  of  Jamaica,  and  by  certain 
articles  made  between  him  and  the  defendant,  he  granted  a  deputation  of 
that  office  to  the  defendant  for  seven  years  and  a  half,  under  the  yearly 
rent  of  four  hundred  pounds ;  and  the  defendant  gave  bond  for  the  per- 
formance of  the  agreement.  An  action  of  debt  was  brought  upon  the 
bond.  The  defendant  pleaded  the  statute  of  5  and  6  Edwd.  6,  c.  16,  made 
against  buying  and  selling  of  offices,  and  averred  that  this  office  concerned 
the  administration  of  justice  in  Jamaica,  and  that  by  virtue  of  that  statute 
both  the  bond  and  articles  were  void.  The  plaintiff  replied,  that  Jamaica 
was  an  island  inhabited  formerly  by  the  Spaniard,  and  governed  by  their 
own  laws  ever  sinre  the  conquest  thereof  by  the  English,  and  that  the 
execution  of  the  said  office  only  concerned  the  said  island,  and  the  inhab- 
itants thereof,  etc.  The  defendant  rejoined,  and  confesses  it  to  be  a  con- 
quered nation,  but  that  ever  since  the  conquest  thereof  it  was  parcel  of  this 
kingdom,  and  governed  by  the  laws  of  England,  and  not  by  their  own 
laws,  etc.  The  plaintiff  demurred  to  the  rejoinder.  The  defendant  joined 
in  demurrer. 

The  only  question  was,  whether  the  laws  of  England  were  in  force 
in  Jamaica? 

The  Court.  The  laws  by  which  the  people  were  governed  before  the 
conquest  of  the  island,  do  bind  them  till  new  laws  are  given,  and  acts  of 


TERRITORIAL   JURISDICTION    OF    NATIONS.  53 

parliament  made  here  since  the  conquest  do  not  bind  them  unless  they  are 
particularly  named.  The  reason  is,  because  though  a  conqueror  may  make 
new  laws,  yet  there  is  a  necessity  that  the  former  should  be  in  force  till  new 
are  obtained,  and  even  then  some  of  their  old  customs  may  remain.  By  the 
statute  of  2-]  Hen.  8,  c.  27,  Wales  was  united  to  England,  yet  some  of  their 
customs  still  remain;  it  is  so  likewise  in  Ireland,  which  nation,  though 
conquered,  yet  still  retain  their  old  customs,  as  in  the  case  of  Tanistry; 
so  that  there  may  be  a  part  of  the  possessions  of  the  crown  of  England 
(as  the  Isle  of  Man  is)  and  yet  not  governed  by  our  laws. 

And  therefore  it  was  held,  that  Jamaica  was  not  governed  by  the  laws 
of  England  after  the  conquest  thereof,  till  new  laws  were  made;  for  they 
had  neither  sheriff  or  counties;  they  were  only  an  assembly  of  people 
which  are  not  bound  by  our  laws,  unless  particularly  mentioned.  Judgment 
for  plaintiff. 

In  the  year  172.3  it  was  determined  by  the  privy  council,  upon  an  appeal 
to  the  king  in  council  froin  the  foreign  plantations.  First,  that  if  there  be 
a  new  and  uninhabited  country  discovered  by  English  subjects,  such  ne^v 
found  country  is  to  be  governed  by  the  laws  of  England,  but  that  after  it 
becomes  inhabited  it  shall  not  be  bound  by  English  statutes  unless  specially 
named.  Secondly,  that  when  the  king  of  England  conquers  a  country,  ho 
may  impose  upon  the  inhabitants  what  laws  he  pleases.  But  Thirdly'  that 
until  such  laws  be  given  by  the  conqueror,  the  laws  and  customs  of  the 
conquered  country  shall  hold  place,  except  where  they  arc  contrary  to  the 
established  religion;  or  enact  anything  malum  in  sc ;  or-are  silent;  for  that 
in  all  such  cases  the  laws  of  the  conquermg  country  shall  prevail.  2  Pcere 
Jl'ins.  /3. 

In  Adv.  Gen.  of  Bengal  z'.  Ranee  Surno)n.oye  Dossee.  2  Moore's  Privy 
Council  (N.S.)  22,  the  court  stated  the  following  rule:  "Where  English- 
men establish  themselves  in  an  uninhabited,  or  barbarous  country,  they 
carry  with  them  not  only  the  laws,  but  the  sovereignty  of  their  own  state; 
and  those  who  live  among  them  and  become  members  of  their  community, 
become  partakers  of  and  subject  to  the  same  laws."  See  Story,  Const. 
Laze,  Sec.  146-138;  i  Blackstone  Com.,  107. 


CHAPTER  III. 

DOMICIL. 

PRICE  V.  PRICE,  1893. 
[156  Pa.  St.  617;  27  Atl.  291.] 

1.  Domicil  Defined.  3-  Importance  of  Domicil. 

2.  Requisites  of  Domicil.  4.  Domicil  Distinguished. 

Opinion  by  Mr.  Chief  Justice  Sterret,  Oct.  2,  1893: 

In  obedience  to  the  precept  of  the  orphans'  court,  this  feigned 
issue  was  formed  for  the  purpose  of  determining  the  disputed 
question  of  fact,  whether,  at  the  time  of  his  decease  in  August, 
1890,  Henry  F.  Price  was  a  resident  of  and  domiciled  in  Penn- 
sylvania. The  validity  of  the  testamentary  paper  alleged  to  be 
his  last  will,  as  well  as  the  jurisdiction  of  the  register  of  wills 
in  admitting  the  same  to  probate,  depended  upon  the  determin- 
ation of  that  question.  The  proponent  of  said  alleged  will,  the 
executor  therein  named,  was  made  plaintiff  in  the  issue,  and 
decedent's  only  child  was  made  defendant.  In  his  declaration,  the 
plaintiff  "averred  that  said  Henry  F.  Price,  at  the  time  of  his 
decease,  was  a  legal  resident  of  Pennsylvania,"  etc.  Defend- 
ant in  her  plea  distinctly  traversed  that  averment,  and  issue 
was  joined  thereon.  It  therefore  follows  that  the  burden  of 
proof  was  on  the  plaintiff;  and  he  recognized  that  fact  by  prov- 
ing in  the  outset  that  decedent  was  born  in  West  Chester,  Pa. ; 
that,  about  the  time  he  attained  his  majority,  he  embarked  in 
business  and  acquired  a  domicile  of  choice  in  the  city  of  Phila- 
delphia, and,  after  residing  there  for  eight  or  ten  years,  he  re- 
moved to  New  York,  many  years  ago,  and  there  acquired  and 
maintained  his  second  domicile  of  choice.  These  facts  were  con- 
ceded ;  but  it  was  necessary  for  plaintiff  to  go  further,  and  he 
accordingly  introduced  testimony  tending  to  prove  that  said 
decedent,  less  than  two  months  before  his  decease,  abandoned  his 
New  York  domicile  and  resumed  his  domicile  of  origin  in  West 
Chester,  Pa.,  and  resided  there  until  he  died.  This  latter  allega- 
tion, that  he  abandoned  his  New  York  domicile,  etc.,  was  con- 
troverted by   defendant,   who  introduced   testimony   tending  to 


DOMICIL.  55 

prove  the  contrary.  It  is  not  our  purpose  to  review  or  discuss 
this  conflicting-  testimony.  It  is  sufficient  to  say  that  it  bor^ 
directly  on  the  issue  formed  by  the  pleadings  and  was  clearly  for 
the  exclusive  consideration  of  the  jury,  whose  special  province 
was  to  judge  as  to  the  credibility  of  the  witnesses,  weigh  the 
evidence  and  determine  for  themselves  whether  it  was  true,  as 
alleged  by  the  plaintiff,  that  the  decedent  did  abandon  his  New 
York  residence  and  come  to  West  Chester  with  the  intention  of 
thenceforth  making  his  permanent  home  in  this  state.  By  their 
verdict  in  defendant's  favor,  the  jury  have  by  necessary  implica- 
tion declared  that  he  did  not;  and  unless  the  learned  trial  judge 
erred  in  one  or  more  of  the  particulars  complained  of,  their 
verdict  should  not  be  disturbed. 

The  question  at  issue,  and  the  different  phases  thereof,  as 
presented  by  the  testimony,  together  with  the  law  applicable 
thereto,  were  all  clearly  and  accurately  stated  in  the  general 
charge  and  answers  to  defendant's  points.  In  the  language  of 
her  fourth,  seventh  and  eighth  points,  which  were  affirmed  and 
not  excepted  to,  the  following  instructions  were  given :  "4.  If 
the  jury  find  that  the  legal  residence  of  Henry  F.  Price  was,  at 
the  time  of  his  decease,  in  the  state  of  New  York,  the  verdict 
must  be  for  the  defendant."  "7.  Acts  alone  are  not  sufficient 
to  constitute  residence,  but  it  requires  acts  and  intentions  com- 
bined." "8.  The  ownership  of  real  estate  in  Chester  county,  not 
coupled  with  residence  therein,  is  of  no  value  with  reference  to 
domicile  or  residence."  The  first  to  seventh  specifications,  inclu- 
sive, are  to  the  learned  judge's  answers  to  her  remaining  points, 
and  the  eighth  and  ninth  are  to  portions  of  his  charge  recited 
therein  respectively.  In  affirming  the  first  and  second  points,  he, 
in  the  language  thereof,  instructed  the  jury:  "i.  Henry  F.  Price 
having  been  a  resident  of  the  city  of  Brooklyn,  in  the  state  of 
New  York,  for  more  than  fifteen  years  prior  to  June  30,  1890. 
the  burden  of  proof  is  on  the  plaintiff  in  this  cause  to  satisfy  you 
that,  at  the  time  of  his  death,  August  26,  1890,  his  legal  residence 
was  other  than  in  the  city  of  Brooklyn,  aforesaid  :"  and  "2.  The 
plaintiffs  having  alleged  that  the  legal  residence  of  Henry  F. 
Price,  at  the  time  of  his  decease,  was  in  West  Chester,  said 
plaintiff  must  satisfy  the  jury  of  this  fact,  otherwise  the  verdict 
must  be  for  the  defendant." 

There  was  certainly  no  error  in  affirming  these  points.  It 
was  proved  by  plaintiff  and  conceded  liy  defendant  that  Brook- 
lyn, New  York,  was  decedent's  chosen  domicile  for  more  than 


06  PRIVATE    INTERNATIONAL    LAW. 

fifteen  years  prior  to  June  30,  1890.  In  the  absence  of  afifirma- 
tive  proof  to  the  contrary,  the  presumption  would  be  that  Brook- 
lyn continued  to  be  the  place  of  his  legal  residence  until  his 
decease.  The  defendant  was  certainly  not  required  to  prove  a 
negative,  especially  in  view  of  the  pleadings,  in  which,  as  we  have 
seen,  the  plaintiff  assumed  the  burden  of  proving  the  affirmative 
fact  upon  which  his  whole  case  depended.  Citation  of  authority 
for  a  proposition  so  self-evident  as  that  is  surely  not  required. 

In  view  of  the  evidence,  we  think  there  is  no  error  in  either 
of  the  other  answers  to  defendant's  points.  Neither  of  them 
requires  discussion.  We  find  nothing  in  any  of  the  instructions 
complained  of  that  is  not  substantially  in  harmony  with  the  settled 
principles  of  law,  relating  to  the  subject  of  domicile. 

As  generally  defined,  a  person's  domicile  is  the  place  where 
he  has  his  true,  fixed  and  permanent  home  and  principal  establish- 
ment, and  to  which,  whenever  he  is  absent,  he  has  the  intention 
of  returning.     Beginning  life  as  an  infant,  every  person  is  at  first 
necessarily  dependent.     When  he  becomes  an  independent  person 
he  w^ill  find  himself  in  possession  of  a  domicile,  which  in  most 
cases  will  be  the  place  of  his  birth,  or  domicile  of  origin  as  it  is 
termed.    By  his  own  act  and  will,  he  can  then  acquire  for  himself 
a  legal  home  or  domicile  different  from  that  of  origin,  termed  a 
domicile  of  choice.     This  is  acquired  by  actual  residence  coupled 
with  the  intention  to  reside  in  a  given  place  or  country,  and  can- 
not be  acquired  in  any  other  way.     For  that  purpose,  residence 
need  not  be  of  long  duration.     If  the  intention  of  permanently 
residing  in  a  particular  place  exists,  a  residence  in  pursuance  of 
that   intention,   however    short,   will    establish   a   domicile.      The 
requisite  animus  is  the  present  intention  of  permanent  or  indefinite 
residence  in  a  given  place  or  country,  or,  negatively  expressed, 
the  absence  of  any  present  intention  of  not  residing  there  per- 
manently or  indefinitely.     (Domicile  of  origin  must  be  presumed 
to  continue  until  another  sole  domicile  has  been  acquired  by  actual 
residence,  coupled  with  the  intention  of  abandoning  the  domicile 
of  origin.)     This  change  must  be  animo  et  facto,  and  the  burden 
of  proof  is  on  the  party  who  asserts  the  change :  5  Am.  &  Eng. 
Enc.  of  Law,  857,  861  to  865,  and  cases  there  cited ;  Hood's  Est., 
21  Pa.  106;  Pfoutz  V.  Crawford,  36  Pa.  421  ;  Reed's  Ap.,  71  Pa. 
378,  383:  Carey's  Ap.,  75  Pa.  201  ;  Hindman's  Ap.,  85  Pa.  466, 
469;  Follweiler  v.  Lutz,  T12  Pa.  107;  Jacobs  on  Domicile.  §  150; 
Story's  Confl.  of  Laws,  §  55. 

In  those  portions  of  the  charge  complained  of  in  the  last  two 


DOMICIL.  57 

Specifications  the  jury  were  rightly  instructed  "to  recollect  all 
the  evidence,  to  pass  upon  the  credibility  of  the  witnesses,  and 
then,  after  considering-  all  the  evidence,  say  whether  or  not  Mr. 
Price  had  changed  his  residence,  prior  to  his  death,  from  the  city 
of  Brooklyn  to  the  borough  of  West  Chester.  Pie  did  not  change 
it  to  any  other  place.  You  cannot  go  astray  on  that  point,  for  he 
never  went  to  any  other  place,  no  matter  what  his  intention  may 
have  been.  His  intention  may  have  been  to  go  to  Birchrunville  or 
Philadelphia,  but  an  intention  not  carried  out,  not  consummated 
by  actual  removal,  amounts  to  nothing.  It  does  not  change  his 
residence.  His  residence  would  remain  where  it  was  previous 
to  any  such  thought  or  the  existence  of  any  such  intention.  .  .  . 
If  his  residence  was  not  changed  to  West  Chester,  it  still  remained 
in  Brooklyn." 

Again:  "If  the  plaintiff  has  satisfied  you  that  he  changed 
his  residence,  in  the  way  I  have  described  to  you,  that  the  law 
requires  it  shall  be  changed,  then  your  verdict  will  be  for  the 
plaintiff." 

The  case  appears  to  have  been  carefully  tried.  We  find  no 
error  in  the  instructions  given  to  the  jury.  If  they  erred  in  not 
finding  according  to  the  weight  of  the  evidence,  the  remedy  was 
in  the  court  below  on  the  motion  for  new  trial.  That  was  con- 
sidered and  denied,  presumably  because  the  trial  judge  was  sat- 
isfied with  the  verdict.  We  cannot  review  his  action  in  that 
regard. 

Judgment  affirmed.* 

"Importance  of  Domicil. — The  fact  of  domicil  is  often  one  of  the  high- 
est importance  to  a  person ;  it  determines  his  civil  and  political  rights ;  it 
fixes  his  allegiance;  it  determines  his  belligerent  or  neutral  character  in 
time  of  war;  it  regulates  his  personal  and  social  relations  whilst  he  lives; 
and  furnishes  the  rule  for  the  disposal  of  his  property,  when  he  dies. 
Abiiigtoii  z'.  X.  Bridgcwatcr,  23  Pick.    (Mass.)    lyo. 

Domicil  Distinguished  from  "Home,"  "Residence,"  "Habitancy,"  and 
"Nationality." — .\  person's  permanent  home  or  residence  is  his  dcrmicil. 
A  temporary  home  or  residence  is  not  the  same  as  domicil.  Giliitaii  f. 
GiUnan,  S-  Mc.  i6p,  S3  .liii.  Dec.  502.  The  term  "resident"  is  often  used 
in  the  sense  of  "domicil"  as  in  case  of  insolvency  statutes,  testamentary 
matters,  voting,  eligibility  for  public  office,  attachments,  and  questions  of 
jurisdiction.  People  v.  Piatt.  30  Hun  (N.  Y.)  454;  Dc  Mcli  v.  De  Mcli, 
120  X.  v.  4S5:  Ayer  v.  Weeks,  65  X.  H.  24S,  iS  Atl.  iioS.  The  word 
"resident"  in  some  statutes  includes  both  a  permanent  and  a  temporary 
residence.     I 'an  Matre  v.  Sankey,  148  III.  336,  36  N.  E.  62S. 

What  the  terms  "residence,"  "inhabitant."  "lives,"  and  "resides" 
mean  in  any  particular  statute  depends  upon  its  purpose  and  the  phrase- 
ology of  the  text.  Each  case  must  be  decided  upon  the  particular  language 
of  the  statute,  and  the  circumstances  giving  rise  to  the  question.  To  fulfil 
the  intention  and  requirements  of  some  statutes,  a  commercial  or  business 


58  PRIVATE    INTERNATIONAL    LAW. 

residence  might  be  all  the  law  required;  whilst  to  gratify  the  intention  of 
another  statute,  it  may  be  necessary  to  hold  residence  to  be  more  than 
a  business  residence,  and  to  mean  all  that  the  word  domicil  means  in  its 
strictest  and  most  technical  application.  Tyler  v.  Murray,  57  Md.  418. 
"Residence"  when  used  in  the  statutes  is  generally  construed  to  mean 
domicil,  though  not  always.  In  Long  v.  Ryan,  30  Graft  (I'a.)  718,  a  per- 
son was  domiciled  in  Washington  but  went  into  Virginia  intending  to 
remain  about  nine  months.  His  property  was  attached  in  Virginia  under 
a  statute  permitting  attachments  against  non-residents,  but  the  court,  not- 
withstanding his  domicil  in  Washington,  held  him  to  be  a  resident  of 
Virginia,  and  dismissed  the  attachment.  See  Haggart  v.  Morgan,  5  N.  Y. 
422;  Ludlozv  z:  Scold,  go  loi^a  173;  Wood  v.  Rocdcr,  45  Nebr.  311;  63 
N.  IV.  853;  Stratton  v.  Brigham,  2  Snced  420;  Ballingcr  v.  Lautier,  15 
Kan.  608;  Clark  v.  Likens,  26  N.  J.  L.  207. 

In  the  case  of  Burt  v.  Allen,  48  IV.  Va.  154,  86  Am.  St.  R.  29  (1900), 
the  court  held:  If  a  resident  of  a  state,  with  a  fi.xed  intention  to  remove 
to  another  state,  and  in  pursuance  of  such  intention  goes  out  of  the  state, 
he  is,  within  the  meaning  of  the  attachment  law  or  exemption  law.  a  non- 
resident of  the  state,  and  he  is  a  non-resident  the  moment  he  begins  the 
removal  of  his  person  from  the  place  of  his  residence,  even  before  he  gets 
outside  the  state,  and  to  constitute  him  a  non-resident,  he  need  not  acquire 
either  a  domicil  or  residence  in  another  state. 

The  term  "citizenship,"  in  its  ordinary  sense  of  nationality,  differs 
from  the  idea  of  domicil.  A  person  may  be  a  citizen  or  subject  of  one 
country,  while  domiciled  in  another.  Brozvn's  Case,  5  Court  of  Claims, 
571;  Harral  v.  Harral,  39  N.  J.  Eq.  270,  51  Am.  Rep.  17.  It  is  sometimes 
construed  in  the  sense  of  domicil.  Firth  v.  Firth,  50  N.  J.  Eq.  137,  24  Atl. 
916;  Morris  v.  Gilmer,  129  U.  S.  315. 

As  between  the  states,  under  the  14th  amendment  to  the  Constitution 
of  the  United  States,  all  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United  States, 
and  of  the  state  wherein  they  reside. 


UDNY  V.  UDNY,  1869. 

[i  H.  L.  Scotch  &  Div.  App.  Cs.  441.] 

l.'Domicil  of  Origin  and  of  Choice.    3.  Reverter  of  Domicil. 
2>  Domicil  as  Determining  Status —    4.  Commercial  Domicil. 
Civil  and  Political. 

The  late  Colonel  John  Robert  FnUerton  Udny,  of  Udny,  in 
the  county  of  Aberdeen,  though  born  at  Leghorn,  where  his  father 
was  consul,  had  by  paternity  his  domicil  in  Seotland.  At  the  age 
of  fifteen,  in  the  year  1794,  he  was  sent  to  Edinburgh,  where  he 
remained  for  three  years.  In  1797  he  became  an  officer  in  the 
Guards.  In  1802  he  succeeded  to  the  family  estate.  In  181 2  he 
married  Miss  Emily  Fitzhugh, — retired  from  the  army, — and  took 
upon  lease  a  house  in  London,  where  he  resided  for  thirty-two 
years,  paying  occasional  visits  to  Aberdeenshire. 

In  1844,  having  got  into  pecuniary  difficulties,  he  broke  up 
his  establishment  in  London  and  repaired  to  Boidogne,  where  he 


DOMICIL.  59 

remained  for  nine  years,  occasionally,  as  before,  visiting  Scotland. 
In  1846  his  wife  died,  leaving  the  only  child  of  her  marriage,  a 
son,  who,  in  1859,  died  a  bachelor. 

Some  time  after  the  death  of  his  wife  Colonel  Udny  formed 
at  Boulogne  a  connection  with  Miss  Ann  Allat,  which  resulted  in 
the  birth  at  Camberwell,  in  Surrey,  on  the  9th  of  May,  1853,  of 
a  son,  the  above  respondent,  w^hose  parents  were  undoubtedly 
unmarried  when  he  came  into  the  world.  They  were,  however, 
united  afterwards  in  holy  matrimony  at  Ormiston,  in  Scotland,  on 
the  2nd  of  January,  1854,  and  the  question  was  whether  the 
Respondent,  under  the  circumstances  of  the  case,  had  become 
legitimate  per  subsequens  matrimonium. 

The  Court  of  Session  (First  Division)  on  the  14th  of  De- 
cember, 1866  (3rd  Series,  vol.  v.  p.  164),  decided  that  Colonel 
Udny's  domicil  of  origin  was  Scotch,  and  that  he  had  never  altered 
or  lost  it,  notwithstanding  his  long  absence  from  Scotland.  They 
therefore  found  that  his  son,  the  Respondent,  "though  illegitimate 
at  his  birth,  was  legitimated  by  the  subsequent  marriage  of  his 
parents.''  Hence  this  appeal,  wdiich  the  House  regarded  as  in- 
volving questions  of  greatly  more  than  ordinary  importance. 

The  Appellant  argued  his  own  case. 

Sir  Roundcll  Palmer,  Q.  C,  Mr.  Mellish,  Q.  C,  Mr.  Fraser, 
and  Mr.  Bristoiv,  appeared  for  the  Respondent. 

The  following  opinions  of  the  Law  Peers  fully  state  the  facts, 
the  authorities,  and  the  legal  reasoning. 

The  Lord  Chancellor  : — 

My  Lords, — In  this  case  the  Appellant  prays  a  judicial  decla- 
ration that  the  Respondent  is  a  bastard, — and  is  not  entitled  to  suc- 
ceed to  the  entailed  estates  of  Udny,  in  Aberdeenshire. 

The  question  depends  upon  what  shall  be  determined  to  have 
Deen  the  domicil  of  the  Respondent's  father,  the  late  Colonel 
Udny,  at  the  time  of  his  birth, — at  the  time  of  the  Respondent's 
birth, — and  at  the  time  of  the  Colonel's  marriage  with  the  Re- 
spondent's mother. 

The  Appellant,  who  argued  his  case  in  person  with  very  con- 
siderable ability,  contended : — First :  That  the  domicil  of  orrgin  of 
Colonel  Udny  was  English.  Secondly  :  That  even  if  that  were  not 
so,  yet  at  tlie  time  of  his  first  marriage,  in  1812.  he  had  aban- 
doned Scotland  for  England,  sold  his  commission  in  the  army, 
took  a  house  on  lease  for  a  long  term  in  London,  and  resided  there 
till  he  left  England  for  France  in  1844.  for  the  purpose  of  avoiding 
his  creditors;  and  that  having  thus  acquired  an  Fnglish  domicil 


QQ  PRIVATE    INTERNATIONAL    LAW. 

he  retained  it,  and  never  re-acquired  his  Scotch  domicil.  Thirdly: 
That,  at  all  events,  if  he  did  recover  his  Scotch  domicil,  yet  it  was 
not  recovered  at  the  date  of  the  Respondent's  birth  in  May,  1853, 
nor  even  at  the  date  of  the  intermarriage  of  the  Respondent's  par- 
ents in  January.  1854. 

As  regards  the  first  question,  your  Lordships  did  not  hear  the 
Respondents.  You  were  satisfied  that  Colonel  Udny's  father,  the 
consul,  had  never  abandoned  his  Scotch  domicil.  Consequently 
you  held  that  Colonel  Udny's  own  domicil  of  origin  was  clearly 
Scotch,  that  having  been  the  domicil  of  his  father  at  the  Colonel's 
birth. 

A  more  difficult  inquiry  arose  as  to  the  domicil  of  Colonel 
Udny  at  the  date  of  the  Respondent's  birth  in  May,  1853. 

Colonel  Udny  appears  to  have  left  the  army  about  the  same 
time  that  he  married  his  first  wife,  viz.  in  1812,  when  he  executed 
a  contract  and  other  instruments  connected  with  his  marriage,  con- 
taining provisions  referable  to  Scottish  law,  and  describing  him- 
self as  of  Udny,  in  the  Connty  of  Aberdeen.  He,  on  his  marriage, 
however,  took  a  long  lease  of  a  house  in  London,  in  which  he  re- 
sided till  1844.  He  made  frequent  visits  to  Scotland,  but  had  no 
residence  there.  He  at  one  time  contemplated  restoring  Udny 
Castle — and  even  three  years  after  he  had  commenced  his  resi- 
dence in  London  appears  to  have  still  thought  it  possible  that  he 
might  complete  the  restorstion — and  plans  were  about  that  time 
submitted  to  him  for  that  purpose.  For  many  years,  however,  he 
seems  to  have  abandoned  all  hope  of  so  doing,  owing  to  his  means 
being  insufficient.  He  was  appointed  a  magistrate  in  Scotland, 
but  appears  not  to  have  acted  as  such.  When  in  Scotland  he  usu- 
ally resided  with  friends,  but  occasionally  at  hotels  in  the  neigh- 
borhood of  his  property,  and  he  continually  received  detailed  ac- 
counts of  the  estates,  and  took  much  interest  in  their  manage- 
ment. His  choice  of  England  as  a  residence  appears  to  have  been 
considerably  influenced  by  his  taste  for  the  sports  of  the  turf.  By 
his  first  marriage  he  had  a  son,  John  Angiistiis  Udny. 

The  Judge  Ordinary  and  the  Court  of  Session  concurred  m 
opinion  that  the  long  and  habitual  residence  in  England  was  not 
sufficient  to  amount  to  an  abandonment  of  the  Colonel's  Scottish 
domicil  of  origin.  This  point,  I  confess,  appears  to  me  to  be  one 
of  great  nicety.  T  am  not  prepared  to  say  that  I  am  satisfied  with 
that  conclusion ;  1)ut  neither  should  I  be  prepared,  without  further 
consideration,  to  recommend  to  your  Lordships  a  reversal  of  the 


DOMICIL.  5X 

judgment  appealed  from  on  the  ground  that  the  opinions  of  the 
Court  below  upon  this  point  were  erroneous. 

Owing  to  this  aetion  having  been  raised  in  the  Colonel's  life- 
time, the  Court  below  had  the  advantage  of  the  testimony  of  Colo- 
nel Udnv  himself,  a  circumstance  which  does  not  often  occur  in 
questions  of  domicil.  It  appears  to  have  been  very  candidly  given, 
and  (as  was  observed  by  the  Lord  Ordinary)  by  no  means  over- 
states the  case  in  favor  of  the  continuance  of  his  Scottish  domicil. 

Several  other  witnesses  were  examined,  who  do  not  carry  the 
case  further.  But,  be  this  as  it  may.  the  events  in  the  Colonel's 
life,  subsequent  to  1S44,  appear  to  me  to  be  those  upon  which 
the  question  of  his  domicil  at  the  birth  of  the  Respondent  really 
depend. 

In  1844,  the  Colonel,  after  having  been  involved  for  some 
time  in  pecuniary  difficulties  ( owing  chieHy  to  his  connection  with 
the  turf),  was  compelled  to  leave  England,  in  order  to  avoid  his 
creditors.  He  at  first  thought  of  taking  some  house  "in  the  coun- 
try." by  which  I  think  he  meant  in  the  rural  parts  of  England;  but 
afterwards  the  pressure  of  creditors  became  too  great  to  admit  of 
his  so  doing,  and  he  appears,  in  the  autumn,  to  have  visited  Scot- 
land, where  correspondence  took  place  between  himself  and  his 
agent  as  to  arranging  a  trust  deed  by  which  Colonel  Udny  and  his 
son,  John  An  gust  us,  were  to  make  provision,  as  far  as  possible,  for 
the  payment  of  their  debts.  On  the  2nd  of  October,  he  writes  to 
his  agent,  mentioning  that  a  creditor  is  pressing  for  immediate 
payment  of  £1200 — "So  let  there  be  no  time  lost."  And  by  a  letter 
of  his  son  of  the  4th  of  November,  1844.  it  appears  that  his  father 
had  left  England  for  Calais  on  the  previous  day.  He  about  this 
time  sold  the  lease  of  the  London  house  in  which  he  had  so  long 
resided.  He  sold  also  (as  he  himself  states  in  his  evidence)  all  his 
furniture  and  "everything  that  was  in  the  house,  including  what 
had  belonged  to  his  mother,  his  sister,  and  his  first  wife."  He 
went  from  Calais  to  Boulogne,  and  there  resided  in  a  hired  house 
till  1853.    He  says  in  his  evidence: 

When  I  went  to  Boulogne  I  had  no  further  connection  with 
London.  I  had  a  married  sister  living  there,  and  various  other 
relations.  During  the  nine  years  when  my  headquarters  were  at 
Boulogne  I  never  resided  in  London.  The  time  that  I  came  over 
for  my  wife's  confinement  in  1853  was  the  first  time  that  I  had 
visited  London  after  leaving  it  for  Boulogne.  I  remained  there 
at  that  time  only  about  a  couple  of  days  and  returned  to  Boulogne. 
While  I  was  at  Bouloirnc  I  came  over  more  than  once  to  Scotland 


.^2  PRIVATE    INTERNATIONAL    LAW. 

to  visit  my  property.  These  were  not  long  visits,  but  I  did  make 
them. 

The  wife  alluded  to  in  the  above  statement  is  the  mother  of 
the  Respondent.  The  Colonel's  first  wife  did  not  go  with  him  to 
Boulogne,  but  she  joined  him  for  a  short  time  in  1845,  leaving  him 
afterwards  on  account  of  ill-health,  and  residing  with  his  brother 
in  London.    She  died  in  1846. 

The  Colonel  at  Boulogne  formed  an  illicit  connection  with 
the  mother  of  the  Respondent,  and  in  May,  1853,  came  to  England 
in  consequence  of  a  wish  that  she  should  be  attended  in  her  con- 
finement by  an  English  accoucheur;  and  on  the  9th  of  May,  1853, 
the  Respondent  was  born  at  Caniberzvell.  The  Colonel  appears 
to  have  returned  almost  immediately  to  Boulogne.  He  had  been 
living  on  a  very  scanty  allow^ance — his  eldest  son,  too,  was  embar- 
rassed— and  at  a  very  early  period  after  the  birth  of  the  Respon- 
dent the  father  and  son  appear  to  have  thought  that  the  birth  of 
this  child  might  facilitate  the  barring  of  the  entail  of  the  Scotch 
estates ;  for  in  a  letter  of  the  29th  of  May,  1853,  the  Colonel  writes 
to  his  son :  'T  shall  be  glad  to  hear  of  your  interview  with  Mr. 
Skinner"  (their  legal  adviser).  'T  think  the  great  difficulty  will 
be  the  uncertainty  of  the  child's  life ;  however,  you  will  talk  over 
all  these  matters  with  him." 

The  Colonel  was  advised  that  by  marrying  tne  Respondent's 
mother,  he  might,  according  to  the  laws  of  Scotland,  render  the 
Respondent  legitimate,  and  that  then  the  concurrence  of  the  Ap- 
pellant in  barring  the  entail  would  not  be  requisite.  The  advice  on 
this  latter  point  was  erroneous ;  but  it  is  enough  to  say  that  the 
Colonel  came  over  to  Scotland  in  November,  1853,  clearly  with  the 
intent  to  celebrate  a  marriage  with  the  Respondent's  mother,  and 
with  the  hope  of  raising  money  for  the  benefit  of  his  elder  son  and 
himself  by  getting  rid  of  the  entail.  He  was  under  an  impression 
that  his  English  creditors  could  not  molest  him  whilst  in  Scotland. 
He  was  much  mortified  afterwards  to  find  that  this  was  not  the 
case,  and  wrote  several  letters  to  his  son  and  others  expressive 
of  his  disgust  at  having  been  hurried  away  from  Boulogne,  and 
his  dislike  to  residing  in  Scotland.  But  I  cannot  bring  my  mind 
to  doubt  that  his  intention  in  returning  to  Scotland  was  to  do  that 
which  he  accomplished,  namely,  to  marry,  in  regular  form,  the 
Respondent's  mother,  and  for  that  purpose  to  be  domiciled  there. 

In  his  letter  of  the  9th  of  July,  1859,  he  expressly  asserts  it 
to  have  been  his  intention  in  1853  to  be  permanently  domiciled  in 
Scotland;  but  that  letter  may  be  open  to  objection  that  it  was 


DOMICIL.  63 

written  very  shortly  ante  litem  mot  am.  I  do  not  think  that  we  can 
safely  rely  on  the  deed  of  disposition  by  his  elder  son  of  the  2nd  of 
December,  1853,  which  recites  '"that  the  Colonel  had  made  ar- 
rangements to  return  again  to  and  to  remain  in  Scotland,"  because 
the  father  was  not  a  party  to  that  instrument.  But,  on  the  other 
hand,  though  the  recital  itself  may  not  be  evidence,  yet  the  Colonel 
took  advantage  of  that  instrument.  And  the  whole  course  of  the 
arrangements  made  shows  that  the  Colonel's  intent,  for  which 
alone  he  came  to  Scotland,  was  by  his  marriage  to  make  the  Re- 
spondent legitimate,  and  by  means  of  that  legitimation  to  deal  with 
the  estates.  These  objects  required  a  Scottish  domicil ;  and  it 
would  be  singular  to  hold  that  he  having,  in  fact,  married  on  the 
2nd  of  January,  1854,  and  resided  in  Scotland  thenceforth  to  his 
death  in  1861  (  after  the  raising  of  the  present  action),  the  domicil 
must  not  be  taken  to  have  been  Scottish,  as  it  ought  to  be,  for  the 
purposes  he  had  in  view  from  the  time  of  his  return  in  1853.  It 
is  true  that  the  death  of  his  elder  son  in  the  interval  between  the 
marriage  and  death  of  the  Colonel,  and  the  consequent  falling  in 
of  the  policies  of  insurance  on  his  life,  placed  the  Colonel  to  a  cer- 
tain degree  in  an  easier  position,  and  removed  his  apprehension 
of  difficulty  from  his  creditors;  but  I  think  his  possible  intention 
to  leave  Scotland  (if  molested  by  creditors)  in  no  way  disproves 
the  existence  of  a  resolution  to  remain,  as  he  did,  in  that  country 
(if  allowed  so  to  do)  as  his  chosen  and  settled  abode. 

It  seems  therefore  clear  to  me  that  the  Colonel  was,  at  the 
time  of  his  marriage,  domiciled  in  Scotland;  but  the  question  re- 
mains as  to  what  was  his  domicil  in  Mav.  1853,  at  the  time  of  the 
Respondent's  birth. 

If  he  were  domiciled  m  England  up  to  1844,  and  retained  an 
English  domicil  up  to  and  after  May,  1853,  then  the  question 
would  arise,  which  has  not  been  determined  in  any  case  by  the 
Scottish  Courts,  whether  the  child,  being  illegitimate  at  its  birth, 
and  its  putative  father  not  having  at  that  time  a  power  of 
legitimating  him  by  means  of  a  subsequent  marriage  with  his 
mother,  could  be  legitimated  l)y  his  putative  father  subsequently 
acquiring  a  Scottish  domicil  before  marriage  with  the  mother. 

I  have  myself  held,  and  so  have  other  judges  in  the  English 
Courts,  that  according  to  the  law  of  England  a  bastard  child 
whose  putative  father  was  English  at  its  birth  could  not  be  legiti- 
mated by  the  father  afterwards  acquiring  a  foreign  domicil  and 
marrying  the  mother  in  a  country  by  the  law  of  which  a  subse- 
quent marriage  would  have  legitimated  the  child.    I  see  no  reason 


64  PRIVATE   INTERNATIONAL    LAW. 

to  retract  that  opinion.  The  status  of  the  child, — with  respect  to- 
its  capacity  to  be  legitimated  by  the  subsequent  marriage  of  its 
parents, — depends  wholly  on  the  status  of  the  putative  father,  not 
on  that  of  the  mother.  If  the  putative  father  have  an  English 
domicil  the  English  law  does  not,  at  the  birth  of  the  child,  take 
notice  of  the  putative  father's  existence.  But  if  his  domicil  be 
Scottish,  or  of  any  other  country  allowing  legitimation,  though  the 
mother  be  English  at  the  birth,  the  putative  father  (as  in  Munro 
v.  Munro,  y  CI.  &  F.  842)  is  capable  of  legitimating  the  child. 
The  foreign  law,  though  deeming  the  child  to  be  fiUus  nullius  at 
birth,  yet  recognizes  the  father  as  such  at  the  moment  of  his 
acknowledging  the  child,  either  by  marriage  and  formal  recog- 
nition, as  in  Prance,  or  by  marriage  only,  as  in  Scotland.  I  do  not 
think  that  the  English  law  can  recognize  a  capacity  in  any  Eng- 
lishman, by  change  of  domicil,  to  cause  his  paternity  and  conse- 
quent power  of  legitimation  to  be  recognized.  But  however  this. 
may  be,  the  question  does  not,  in  my  judgment,  here  arise. 

I  am  of  opinion  that  the  English  domicil  of  Colonel  Udny^. 
if  it  were  ever  acquired,  was  formally  and  completely  abandoned 
in  1844  when  he  sold  his  house  and  broke  vip  his  English  establish- 
ment with  the  intention  not  to  return.  And,  indeed,  his  return  to 
that  country  was  barred  against  him  by  the  continued  threat  of 
process  by  his  creditors.  I  think  that  on  such  abandoment  his 
domicil  of  origin  revived.  It  is  clear  that  by  our  law  a  man  must 
have  some  domicil,  and  must  have  a  single  domicil.  It  is  clear,  on. 
the  evidence,  that  the  Colonel  did  not  contemplate  residing  in 
France — and,  indeed,  that  has  scarcely  been  contended  for  by  the 
Appellant.  But  the  Appellant  contends  that  when  once  a  new 
domicil  is  acquired,  the  domicil  of  origin  is  obliterated,  and  cannot 
be  re-acquired  more  readily  or  by  any  other  means  than  those  by 
which  the  first  change  of  the  original  domicil  is  brought  about, 
namely,  aninio  et  facto.  He  relied  for  this  proposition  on  the  de- 
cision in  Mnnroc  v.  Douglas  (5  Madd.  379)  where  Sir  John  Leach 
certainly  held  th.at  a  Scotsman,  having  acquired  an  Anglo-Indian 
domicil,  and  having  finally  quitted  India,  but  not  yet  having  settled 
elsewhere,  did  not  re-acquire  his  original  domicil ;  saying  ex- 
pressly, 'T  can  find  no  difference  in  principle  between  an  original 
domicil  and  an  acquired  domicil."  That  he  acquired  no  new  domi- 
cil may  be  conceded,  but  it  appears  to  me  that  sufficient  weight 
was  not  given  to  the  efifect  of  the  domicil  of  origin,  and  that  there 
is  a  very  substantial  difference  in  principle  between  an  original  and 
an   acquired   domicil.     I   shall   not   add   to   the  many  ineffectual 


DOMICIL.  65 

attempts  to  define  domicil.  But  the  domicil  of  origin  is  a  matter 
wholly  irrespective  of  any  animus  on  the  part  of  its  subject.  He 
acquires  a  certain  status  civHis,  as  one  of  your  Lordships  has 
designated  it,  which  subjects  him  and  his  property  to  the  municipal 
jurisdiction  of  a  country  which  he  may  never  even  have  seen,  and 
in  which  he  may  never  reside  during  the  whole  course  of  his  life, 
his  domicil  being  simi)ly  determined  by  that  of  his  father.  A 
change  of  that  domicil  can  only  be  effected  aniino  et  facte — that 
IS  to  say.  by  the  choice  of  another  domicil,  evidenced  by  residence 
within  the  territorial  limits  to  which  the  jurisdiction  of  the  new 
domicil  extends.  He,  in  making  this  change,  does  an  act  which  is 
more  nearly  designated  by  the  word  "settling"  than  by  any  one 
word  in.  our  language.  Thus  we  speak  of  a  colonist  settling  in 
Canada  or  Av.sfralia,  or  of  a  Scotsman  settling  in  England,  and 
the  word  is  frequently  used  as  expressive  of  the  act  of  change  of 
domicil  in  the  various  judgments  pronounced  by  our  Courts.  But 
this  settlement  aniuio  et  facto  by  which  the  new  domicil  is  acquired 
is,  of  course,  susceptible  of  abandonment  if  the  intention  be  evi- 
denced by  facts  as  decisive  as  those  which  evidenced  its  acquire- 
ment. 

It  is  said  by  Sir  John  Leach,  that  the  change  of  the  newly- 
acquired  domicil  can  only  be  evidenced  by  an  actual  settling  else- 
where or  (which  is.  however,  a  remarkable  qualification)  by  the 
subject  of  the  change  dying  in  itinere  when  about  to  settle  himself 
elsewhere.  But  the  dying  in  itinere  to  a  wholly  new  domicil  would 
not,  I  apprehend,  change  a  domicil  of  origin  if  the  intended  new 
domicil  were  never  reached.  So  that  at  once  a  distinction  is  ad- 
mitted between  what  is  necessary  to  re-acquire  the  original  domicil 
and  the  acquiring  of  a  third  domicil.  Indeed,  the  admission  of  Sir 
John  Leach  seems  to  have  been  founded  on  the  actual  decision 
in  the  case  of  Coh'ille  v.  Saunders,  cited  in  full  in  Munroe  v. 
Douglas,  from  the  Dictionary  of  Decisions.  In  that  case,  a  person 
of  Scottish  origin  became  domiciled  at  St.  Vincent,  but  left  that 
island,  writing  to  his  father  and  saying  that  his  health  was  injured, 
and  he  was  going  to  America;  and  that  if  he  did  not  succeed  in 
America  he  would  return  to  his  native  country.  He  was  drowned 
in  Canada,  and  some  memoranda  were  found  indicating  an  inten- 
tion to  return  to  Scotland,  and  it  was  held  that  his  Scottish  domi- 
cil had  revived. 

It  seems  reasonable  to  say  that  if  the  choice  of  a  new  abode 
and  actual  settlement  there  constitute  a  change  of  the  original 
domicil,  then  the  exact  converse  of  such  a  procedure,  viz.,  the  in- 

5 


66  PRIVATE    INTERNATIONAL    LAW. 

tention  to  abandon  the  new  domicil,  and  an  actual  abandonment  of 
it,  ought  to  be  equally  effective  to  destroy  the  new  domicil.  That 
which  may  be  acquired  may  surely  be  abandoned,  and  though  a 
man  cannot,  for  civil  reasons,  be  left  without  a  domicil,  no  such 
difficulty  arises  if  it  be  simply  held  that  the  original  domicil  re- 
vives. That  original  domicil  depended  not  on  choice  but  attached 
itself  to  its  subject  on  his  birth,  and  it  seems  to  me  consonant  both 
to  convenience  and  to  the  currency  of  the  whole  law  of  domicil  to 
hold  that  the  man  born  with  a  domicil  may  shift  and  vary  it  as 
often  as  he  pleases,  indicating  each  change  by  intention  and  act, 
whether  in  its  acquisition  or  abandonment ;  and  further,  to  hold 
that  every  acquired  domicil  is  capable  of  simple  abandonment  ani- 
mo  et  facto  the  process  by  which  it  was  acquired,  without  its  being 
necessary  that  a  new  one  should  be  at  the  same  time  chosen,  other- 
wise one  is  driven  to  the  absurdity  of  asserting  a  person  to  be 
domiciled  in  a  country  which  he  has  resolutely  forsaken  and  cast 
off,  simply  because  he  may  (perhaps  for  years)  be  deliberating 
before  he  settles  himself  elsewhere.  Why  should  not  the  domicil 
of  origin  cast  on  him  by  no  choice  of  his  own,  and  changed  for  a 
time,  be  the  state  to  which  he  naturally  falls  back  when  his  first 
choice  has  been  abandoned  animo  et  facto,  and  whilst  he  is  delib- 
erating before  he  makes  a  second  choice. 

Lord  Cottenham  in  Munro  v.  Munro  (7  CI.  &  F.  871)  says, 
"So  firmly  indeed  did  the  civil  law  consider  the  domicil  of  origin 
to  adhere  that  it  holds  that  if  it  be  actually  abandoned  and  a  domi- 
cil acquired,  but  that  again  abandoned,  and  no  new  domicil  ac- 
quired in  its  place,  the  domicil  of  origin  revives."  No  authority 
is  cited  by  his  Lordship  for  this.  He  probably  alluded  to  some 
observations  which  occur  in  the  case  of  La  Virginie  (5  Rob.  Adm. 
99)  where  Sir  William  Scott  said  : 

It  is  always  to  be  remembered  that  the  native  character  easily 
reverts,  and  that  it  requires  fewer  circumstances  to  constitute 
domicil  in  the  case  of  a  native  subject  than  to  impress  the  national 
character  on  one  who  is  originally  of  another  country. 

In  the  case  of  The  Indian  Chief  (3  Rob.  Adm.  12)  the  ques- 
tion was  whether  the  ship  was  the  property  of  a  British  subject; 
for  if  so,  her  trading  was  illegal.  The  owner,  Mr.  Johnson, 
averred  that  he  was  an  American.  Sir  William  Scott  held  him  to 
be  an  American  by  origin,  but  that  having  come  to  England  in 
1783  and  remained  till  1797,  he  had  become  an  English  merchant. 
But  he  quitted  England  before  the  capture  of  the  vessel,  and  letters 
were  produced  shewing  his  intention  to  return  to  America,  which 


DOMICIL.  67 

he  does  not  appear  to  have  reached  until  after.  And  Sir  lViUia>n 
Scott  says,  "The  ship  arrives  a  few  weeks  after  his  departure,  and 
taking  it  to  be  clear  that  the  natural  character  of  Mr.  Johnson  as 
a  British  merchant  was  founded  on  residence  only,  that  it  was  ac- 
quired by  residence,  and  rested  on  that  circumstance  alone,  it  must 
be  held  that  from  the  moment  he  turned  his  back  on  the  country 
where  he  had  resided  on  his  way  to  his  own  country  he  was  in  the 
act  of  resuming  his  original  character,  and  is  to  be  considered  as 
an  American.  The  character  that  is  gained  by  residence  ceases 
by  residence.  It  is  an  adventitious  character  which  no  longer  ad- 
heres to  him  from  the  moment  that  he  puts  himself  in  motion  bona 
fide  to  quit  the  country  sine  animo  revertendi." 

Story,  in  his  Conflict  of  Laws,  sect.  47  (at  the  end),  says:  "If 
a  man  has  acquired  a  new  domicil  different  from  that  of  his  birth, 
and  he  removes  from  it  with  intention  to  resume  his  native  domi- 
cil, the  latter  is  re-acquired  even  while  he  is  on  his  way,  for  it 
reverts  from  the  moment  the  other  is  given  up." 

The  qualification  that  he  must  abandon  the  new  domicil  with 
the  special  intent  to  resume  that  of  origin  is  not,  I  think,  a  reason- 
able deduction  from  the  rules  already  laid  down  by  decision,  be- 
cause intent  not  followed  by  a  definite  act  is  not  sufficient.  The 
more  consistent  theory  is,  that  the  abandonment  of  the  new  domi- 
cil is  complete  animo  et  facto,  because  the  factum  is  the  abandon- 
ment, the  aniiiuts  is  that  of  never  returning. 

I  have  stated  my  opinion  more  at  length  than  I  should  have 
done  were  it  not  of  great  importance  that  some  fixed  common 
principles  should  guide  the  Courts  in  every  country  on  interna- 
tional questions.  In  questions  of  international  law  we  should  not 
depart  from  any  settled  decisions,  nor  lay  down  any  doctrine  in- 
consistent with  them.  I  think  some  of  the  expressions  used  in 
former  cases  as  to  the  intent  '\\viiere  patriam,"  or  to  become  "a 
Frenchman  instead  of  an  Englishman,"  go  beyond  the  question  of 
domicil.  The  question  of  naturalization  and  of  allegiance  is  dis- 
tinct from  that  of  domicil.  A  man  may  continue  to  be  an  English- 
man, and  yet  his  contracts  and  the  succession  to  his  estate  may 
have  to  be  determined  by  the  law  of  the  country  in  which  he  has 
chosen  to  settle  himself.  He  cannot,  at  present  at  least,  put  off 
and  resume  at  will  obligations  of  obedience  to  the  government  of 
the  country  of  which  at  his  birth  he  is  a  subject,  but  he  may  many 
times  change  his  domicil.  It  appears  to  me,  however,  that  each 
acquired  domicil  may  be  also  successively  abandoned  simplicitcr, 
and  that  thereupon  the  original  domicil  simplicitcr  reverts. 


68  PRIVATE     INTERNATIONAL    LAW. 

For  these  reasons,  my  Lords,  x  propose  to  your  Lordships  the 
affirmation  of  the  interlocutors  complained  of,  and  the  dismissal 
of  the  appeal  with  costs. 

Lord  Chelmsfords  : — 

My  Lords,  at  the  opening  of  the  argument  of  this  appeal  for 
the  Respondent  his  learned  counsel  were  informed  that  your  Lord- 
ships were  of  opinion  that  the  domicil  of  Colonel  Udny  down  to 
the  year  1812  was  his  Scotch  domicil  of  origin,  and  that  the  case 
was  therefore  narrowed  down  to  the  questions  raised  by  the  Ap- 
pellant,— whether  that  domicil  had  been  superceded  by  the  acqui- 
sition of  another  domicil  in  England,  and  whether  such  after- 
acquired  domicil  was  retained  at  the  time  of  the  birth  of  the  Re- 
spondent, and  continued  down  to  the  period  of  the  marriage  of  the 
Respondent's  parents  in  Scotland. 

In  considering  these  questions  it  will  be  necessary  to  ascertain 
the  nature  and  effect  of  a  domicil  of  origin ;  whether  it  is  like  an 
after-acquired  domicil,  which  when  it  is  relinquished  can  be  re- 
acquired only  in  the  same  manner  in  which  it  was  originally  ac- 
quired, or  whether,  in  the  absence  of  any  other  domicil,  the  domi- 
cil of  origin  must  not  be  had  recourse  to  for  the  purpose  of  deter- 
mining any  question  which  may  arise  as  to  a  party's  personal 
rights  and  relations. 

Story,  in  his  Conflict  of  Laws  (sect.  48),  says,  "The  moment 
a  foreign  domicil  is  abandoned  the  native  domicil  is  re-acquired.'* 
Great  stress  was  laid  by  the  Appellant  in  his  reference  to  this  pas- 
sage upon  the  word  "re-acquired,"  which  is  obviously  an  inaccu- 
rate expression.  For,  as  was  pointed  out  in  the  course  of  the  ar- 
gument, a  domicil  of  origin  is  not  an  acquired  domicil,  but  one 
which  is  attributed  to  every  person  by  law.  The  meaning  of 
Story,  therefore,  clearly  is,  that  the  abandonment  of  a  subsequent- 
ly-acquired domicil  if>so  facto  restores  the  domicil  of  origin.  And 
this  doctrine  appears  to  be  founded  upon  principle,  if  not  upon 
direct  authority. 

It  is  undoubted  law  that  no  one  can  be  without  a  domicil.  If, 
then,  a  person  has  left  his  native  domicil  and  acquired  a  new  one, 
which  he  afterwards  abandons,  what  domicil  must  be  resorted  to 
to  determine  and  regulate  his  personal  status  and  rights?  Sir 
John  Leach,  V.  C,  in  Munroe  v.  Douglas  (5  Madd.  405),  held 
that  in  the  case  supposed  the  acquired  domicil  attaches  to  the  per- 
son till  the  complete  acquisition  of  a  subsequent  domicil,  and  (as 
to  this  point)  he  said  there  was  no  difference  in  principle  between 


DOMICIL.  69 

the  original  domicil  and  an  acquired  domicil.  His  Honour's  woras 
are :  "A  domicil  cannot  be  lost  by  mere  abandonment.  It  is  not  to 
be  defeated  animo  merely,  but  aiiiiiw  ct  facto,  and  necessarily  re- 
mains until  a  subsequent  domicil  be  acquired,  unless  tbe  party  die 
in  itincre  towards  an  intended  domicil."  There  is  an  apparent  in- 
consistency in  this  passage,  for  the  Vice-Chancellor  having  said 
that  a  domicil  necessarily  remains  until  a  subsequent  domicil  be 
acquired  an'uno  et  facto,  added,  "unless  the  party  die  in  itinere  to- 
wards an  intended  domicil ;"  that  is,  at  a  time  when  the  acquisition 
of  the  subsequent  domicil  is  incomplete  and  rests  in  intention  only. 

I  cannot  understand  upon  what  ground  it  can  be  alleged  that 
a  person  may  not  abandon  an  acquired  domicil  altogether  and 
carry  out  his  intention  fully  by  removing  animo  iion  revertendi ; 
and  why  such  abandonment  should  not  be  complete  until  another 
domicil  is  acquired  in  lieu  of  the  one  thus  relinquished. 

Sir  JVilliani  Scott,  in  the  case  of  The  Indian  Chief  (3  Rob. 
Adm.  20),  said :  "The  character  that  is  gained  by  residence  ceases 
by  residence.  It  is  an  adventitious  character  which  no  longer  ad- 
heres to  a  person  from  the  moment  he  puts  himself  in  motion  bona 
fide  to  quit  the  country  sine  animo  revertendi,"  and  he  mentions 
the  case  of  a  British-born  subject,  who  had  been  resident  in  Suri- 
nam and  St.  Eustatius,  and  had  left  those  settlements  with  an  in- 
tention of  returning  to  this  country,  but  had  got  no  farther  than 
Holland,  the  mother  country  of  those  settlements,  when  the  war 
broke  out ;  and  it  was  determined  by  the  Lords  of  Appeal  that  he 
was  in  itinere,  that  he  had  put  himself  in  motion,  and  was  in  pur- 
suit of  his  native  British  character. 

Sir  John  Leach  seems  to  me  to  be  incorrect  also  in  saying  that 
in  the  case  of  the  abandonment  of  an  acquired  domicil  there  is 
no  difference  in  principle  between  the  acquisition  of  an  entirely 
new  domicil  and  the  revival  of  the  domicil  of  origin.  It  is  said 
by  Story,  in  sect.  47  of  his  Conflict  of  Laws,  that  "If  a  man  has 
acquired  a  new  domicil  dift'erent  from  that  of  his  birth,  and  he  re- 
moves from  it  with  an  intention  to  resume  his  native  domicil,  the 
latter  is  re-acquired  even  while  he  is  on  his  way  ///  itinere;  for  it 
reverts  from  the  moment  the  other  is  given  u])."  This  certainly 
cannot  be  predicated  of  a  person  journeying  towards  a  new  domi- 
cil which  it  is  his  intention  to  acquire. 

I  do  not  think  that  the  circumstances  mentioned  by  Story  in 
the  above  passage,  viz.,  that  the  person  has  removed  from  his  ac- 
quired domicil  with  an  intention  to  resume  his  native  domicil,  antl 
that  he  is  /';/  iti)iere  for  the  purpose,  are  at  all  necessary  to  restore 


70  PRIVATE     INTERNATIONAL    LAW. 

the  domicil  of  origin.  The  true  doctrine  appears  to  me  to  be  ex- 
pressed in  the  last  words  of  the  passage:  "It"  (the  domicil  of 
origin)  "reverts  from  the  moment  the  other  is  given  up." 

This  is  a  necessary  conclusion  if  it  be  true  that  an  acquired 
domicil  ceases  entirely  whenever  it  is  intentionally  abandoned,  and 
that  a  man  can  never  be  without  a  domicil.  The  domicil  of  origin 
always  remains,  as  it  were,  in  reserve,  to  be  resorted  to  in  case  no 
other  domicil  is  found  to  exist.  This  appears  to  me  to  be  the  true 
principle  upon  this  subject,  and  it  will  govern  my  opinion  upon  the 
present  appeal. 

Upon  the  question  whether  Colonel  Udny  ever  acquired  an 
English  domicil  vrhich  superseded  his  domicil  of  origin,  there  can 
be  no  doubt  that  his  long  residence  in  Grosvenor  Street  for  the 
space  of  thirty-two  years  from  1812  to  1844,  is  calculated  to  pro- 
duce a  strong  impression  in  favor  of  the  acquisition  of  such  a 
domicil.  Time  is  always  a  material  element  in  questions  of  domi- 
cil ;  and  if  there  is  nothing  to  counteract  its  effect,  it  may  be  con- 
clusive upon  the  subject.  But  in  a  competition  between  a  domicil 
of  origin  and  an  alleged  subsequently-acquired  domicil  there  may 
be  circumstances  to  shew  that  however  long  a  residence  may  have 
continued  no  intention  of  acquiring  a  domicil  may  have  existed  at 
any  one  moment  during  the  whole  of  the  continuance  of  such  resi- 
dence. The  question  in  such  a  case  is  not,  whether  there  is  evi- 
dence of  an  intention  to  retain  the  domicil  of  origin,  but  whether 
it  is  proved  that  there  was  an  intention  to  acquire  another  domicil. 
As  already  shewn,  the  domicil  of  origin  remains  till  a  new  one  is 
acquired  animo  ct  facto.  Therefore,  a  wish  or  a  desire  expressed 
from  time  to  time  to  return  to  the  place  of  the  first  domicil,  or  any 
looking  to  it  as  the  ultimate  home,  although  wholly  insufficient  for 
the  retention  of  the  domicil  of  origin,  may  yet  amount  to  material 
evidence  to  rebut  the  presumption  of  an  intention  to  acquire  a  new 
domicil  arising  from  length  of  residence  elsewhere.  In  this  view 
it  would  be  a  fair  answer  to  the  question.  Did  Colonel  Udny  intend 
to  make  England  his  permanent  home  ?  to  point  to  all  his  acts  and 
declarations  with  respect  to  Scotland  and  his  estates  there,  to  the 
offices  which  he  held,  to  the  institutions  to  which  he  belonged,  and 
to  his  subscriptions  to  local  objects,  shewing,  that  though  his  pur- 
suits drew  him  to  England  and  kept  him  there,  and  his  circum- 
stances prevented  his  making  Udny  Castle  fit  for  his  residence,  he 
always  entertained  a  hope,  if  not  an  expectation,  that  a  change  in 
his  fortunes  might  eventually  enable  him  to  appear  in  his  country 


DOMICIL.  7L 

of  origin,  and  to  assume  his  proper  position  there  as  a  Scotch 
proprietor. 

If  the  residence  in  England  began  under  circumstances  which 
indicate  no  intention  that  it  was  to  be  permanent,  when  did  it  as- 
sume the  character  of  permanence  by  proof  that  the  Colonel  had 
intentionally  given  up  his  Scotch  domicil  and  adopted  a  different 
one?  It  appears  to  me  upon  this  question  of  fact,  that  through- 
out the  whole  of  the  Colonel's  residence  in  London  there  was  al- 
ways absent  the  intention  to  make  it  his  permanent  home  which  is 
essential  to  constitute  a  domicil ;  residence  alone,  however  long, 
being  immaterial  unless  coupled  with  such  intention.  But  even  if 
it  should  be  considered  that  Colonel  Udny's  residence  in  England, 
though  not  originally  intended  to  be  his  permanent  home,  after  a 
certain  length  of  time  ripened  into  a  domicil,  yet  in  1844  he  gave 
up  the  house  in  Grosvcnor  Street  and  returned  to  Boulogne,  where 
he  remained  for  nine  years  without  any  apparent  intention  of  again 
taking  up  his  residence  in  England.  This  abandonment  of  the 
English  residence,  both  in  will  and  deed,  although  accompanied 
with  no  immediate  intention  of  resuming  the  Scotch  domicil,  put 
an  end  at  once  to  the  English  domicil,  and  the  domicil  of  origin 
ip60  facto  became  the  domicil  by  which  the  personal  rights  of 
Colonel  Udny  were  thenceforth  to  be  regulated. 

This  makes  it  unnecessary  to  consider  what  would  have  been 
the  condition  of  the  Respondent  if  his  birth  had  taken  place  in 
England  before  the  resumption  of  the  Scotch  domicil  by  Colonel 
Udny,  and  the  subsequent  marriage  of  his  parents  in  Scotland 
after  that  domicil  had  been  resumed.  Because  the  domicil  being 
Scotch,  the  place  of  the  birth  of  the  Respondent  is  wholly  imma- 
terial, and  the  case  is  completely  governed  by  the  authority  of  the 
cases  of  Dalhousie  v.  McDouall  (7  CI.  &  F.  817)  and  Mnnro  v. 
Munro  (Ibid.  842),  in  each  of  which  the  birth  of  the  illegitimate 
child,  and  also  the  subsequent  marriage  of  the  parents,  took  place 
in  England,  but  the  domicil  being  Scotch  it  was  held  that  neither 
the  place  of  the  marriage  nor  the  place  of  the  birth  affected  the 
status  of  the  child. 

The  existence  of  the  Scotch  domicil  renders  it  also  unnecessarv 
to  consider  whether  the  parents  of  the  Respondent  went  to  Scot- 
land for  the  purpose  merely  of  legitimating  the  Respondent  bv 
their  marriage  there,  and  deprives  the  case  of  Rose  v.  Ross  (4 
Wils.  &  Shaw,  289),  which  was  insisted  upon  by  the  Appellant, 
of  all  application.  For  in  that  case,  as  stated  by  the  Lord  Chancel- 
lor, "the  parties  were  domiciled  in  England,  the  child  was  born  in 


72  PRIVATE     INTERNATIONAL    LAW. 

England,  the  parties  went  to  Scotland  for  the  purpose  expressly  of 
behig  married,  and  having  been  married  they  returned  to  England 
to  the  place  of  their  former  domicil." 

I  agree  with  my  noble  and  learned  friend  that  the  interlocu- 
tors appealed  from  ought  to  be  affirmed. 
Lord  Westbury  : — 

The  law  of  England,  and  of  almost  all  civilized  countries,  as- 
cribes to  each  individual  at  his  birth  two  distinct  legal  states  or 
conditions ;  one  by  virtue  of  which  he  becomes  the  subject  of  some 
particular  country,  binding  him  by  the  tie  of  natural  allegiance, 
and  which  may  be  called  his  political  status;  another,  by  virtue  of 
which  he  has  ascribed  to  him  the  character  of  a  citizen  of  some 
particular  country,  and  as  such  is  possessed  of  certain  municipal 
rights,  and  subject  to  certain  obligations,  which  latter  character  is 
the  civil  status  or  condition  of  the  individual,  and  may  be  quite 
different  from  his  political  status.  The  political  status  may  de- 
pend on  different  laws  in  different  countries ;  whereas  the  civil 
status  is  governed  universally  by  one  single  principle,  namely,  that 
of  domicil,  which  is  the  criterion  established  by  law  for  the  pur- 
pose of  determining  civil  status.  For  it  is  on  this  basis  that  the 
personal  rights  of  the  party,  that  is  to  say,  the  law  which  deter- 
mines his  majority  or  minority,  his  marriage,  succession,  testacy, 
or  intestacy,  must  depend.  International  law  depends  on  rules 
which,  being  in  great  measure  derived  from  the  Roman  law,  are 
common  to  the  jurisprudence  of  all  civilized  nations.  It  is  a  set- 
tled principle  that  no  man  shall  be  without  a  domicil,  and  to  secure 
this  result  the  law  attributes  to  every  individual  as  soon  as  he  is 
born  the  domicil  of  his  father,  if  the  child  be  legitimate,  and  the 
domicil  of  the  mother  if  illegitimate.  This  has  been  called  the 
domicil  of  origin,  and  is  involuntary.  Other  domicils,  including 
domicil  by  operation  of  law,  as  on  marriage,  are  domicils  of  choice. 
For  as  soon  as  an  individual  is  sui  juris  it  is  competent  to  him  to 
elect  and  assume  another  domicil,  the  continuance  of  which 
depends  upon  his  will  and  act.  When  another  domicil  is  put  on, 
the  domicil  of  origin  is  for  that  purpose  relinquished,  and  remains 
in  abeyance  during  the  continuance  of  the  domicil  of  choice ;  but 
as  the  domicil  of  origin  is  the  creature  of  law,  and  independent  of 
the  will  of  the  party,  it  would  be  inconsistent  with  the  principles 
on  which  it  is  by  law  created  and  ascribed,  to  suppose  that  it  is 
capable  of  being  by  the  act  of  the  party  entirely  obliterated  and 
extinguished.  It  revives  and  exists  whenever  there  is  no  other 
domicil,  and  it  does  not  require  to  be  regained  or  reconstituted 


DOMICIL. 


73 


<animo  et  facto,  in  the  manner  which  is  necessary  for  the  acquisi- 
tion of  a  domicil  of  choice. 

Doniicil  of  choice  is  a  conchision  or  inference  which  the  law 
derives  from  the  fact  of  a  man  fixing  voluntarily  his  sole  or  chief 
residence  in  a  particular  place,  with  an  intention  of  continuing  to 
reside  there  for  an  unlimited  time.  This  is  a  description  of  the 
circumstances  wdiich  create  or  constitute  a  domicil,  and  not  a  defi- 
nition of  the  term.  There  must  be  a  residence  freely  chosen,  and 
not  prescribed  or  dictated  by  any  external  necessity,  such  as  the 
duties  of  office,  the  demands  of  creditors,  or  the  relief  from  illness ; 
and  it  must  be  residence  fixed  not  for  a  limited  period  of  particu- 
lar purpose,  but  general  and  indefinite  in  its  future  contemplation. 
It  is  true  that  residence  originally  temporary,  or  intended  for  a 
limited  period,  may  afterwards  become  general  and  unlimited,  and 
in  such  a  case  so  soon  as  the  change  of  purpose,  or  animus 
manendi,  can  be  inferred  the  fact  of  domicil  is  established. 

The  domicil  of  origin  may  be  extinguished  by  act  of  law,  as, 
for  example,  by  sentence  of  death  or  exile  for  life,  which  puts  an 
•end  to  the  status  civilis  of  the  criminal ;  but  it  cannot  be  destroyed 
ty  the  will  and  act  of  the  party. 

Domicil  of  choice,  as  it  is  gained  animo  et  facto,  so  it  may  be 
put  an  end  to  in  the  same  manner.  Expressions  are  found  in  some 
books,  and  in  one  or  two  cases,  that  the  first  or  existing  domicil 
remains  until  another  is  acquired.  This  is  true  if  applied  to  the 
domicil  of  origin,  but  cannot  be  true  if  such  general  words  were 
intended  (which  is  not  probable)  to  convey  the  conclusion  that  a 
domicil  of  choice,  though  unequivocally  relinquished  and  aban- 
doned, clings,  in  despite  of  his  will  and  acts,  to  the  party,  until 
another  domicil  has  animo  ct  facto  been  acquired.  The  cases  to 
which  1  have  referred  are,  in  my  opinion,  met  and  controlled  by 
other  decisions.  A  natural-born  Englishman  may,  if  he  domiciles 
himself  in  Holland,  acquire  and  have  the  status  civilis  of  a  Dutch- 
man, which  is  of  course  ascribed  to  him  in  respect  of  his  settled 
abode  in  the  land,  but  if  he  breaks  up  his  establishment,  sells  his 
house  and  furniture,  discharges  his  servants,  and  quits  Holland, 
declaring  that  he  will  never  return  to  it  again,  and  taking  with 
him  his  wife  and  children,  for  the  purpose  of  traveling  in  France 
or  Italy  in  search  of  another  place  of  residence,  is  it  meant  to  be 
said  that  he  carries  his  Dutch  domicil,  that  is,  his  Dutch  citizen- 
ship, at  his  back,  and  that  it  clings  to  him  pertinaciously  until  he 
has  finally  set  up  his  tabernacle  in  another  cotlntry?"  Such  a  con- 
clusion would  be  absurd  ;  but  there  is  no  absurdity  and.  on  tlio  con- 


74  PRIVATE    INTERNATIONAL    LAW. 

trary,  much  reason,  in  holding  that  an  acquired  domicil  may  be 
effectuaUy  abandoned  by  unequivocal  intention  and  act ;  and  that 
when  it  is  so  determined  the  domicil  of  origin  revives  until  a  new 
domicil  of  choice  be  acquired.  According  to  the  dicta  in  the  books 
and  cases  referred  to,  if  the  Englishman  whose  case  we  have  been 
supposing  lived  for  twenty  years  after  he  had  finally  quitted 
Holland,  without  acquiring  a  new  domicil,  and  afterwards  died 
intestate,  his  personal  estate  would  be  administered  according  to 
the  law  of  Holland,  and  not  according  to  that  of  his  native  coun- 
try. This  is  an  irrational  consequence  of  the  supposed  rule.  But 
when  a  proposition  supposed  to  be  authorized  by  one  or  more 
decisions  involves  absurd  results,  there  is  great  reason  for 
believing  that  no  such  rule  was  intended  to  be  laid  down. 

In  Mr.  Justice  Story's  Conflict  of  Laws  (the  last  edition)  it  is 
stated  that  "the  moment  the  foreign  domicil  (that  is,  the  domicil 
of  choice)  is  abandoned,  the  native  domicil  or  domicil  of  origin  is 
re-acquired." 

And  such  appears  to  be  the  just  conclusion  from  several 
decided  cases,  as  well  as  from  the  principles  of  the  law  of  domicil. 

In  adverting  to  Mr.  Justice  Story's  work,  I  am  obliged  to- 
dissent  from  a  conclusion  stated  in  the  last  edition  of  that  useful 
book,  and  which  is  thus  expressed,  "The  result  of  the  more  recent 
English  cases  seems  to  be,  that  for  a  change  of  national  domicil 
there  must  be  a  definite  and  effectual  change  of  nationality."  In 
support  of  this  proposition  the  editor  refers  to  some  words  which 
appear  to  have  fallen  from  a  noble  and  learned  lord  in  addressing 
this  House  in  the  case  of  Moorchonse  v.  Lord  (lo  H.  L.  C.  272) 
when  in  speaking  of  the  acquisition  of  a  French  domicil.  Lord 
Kin^sdozvn  savs,  "A  man  must  intend  to  become  a  Frenchman 
instead  of  an  Englishman." 

These  words  are  likely  to  mislead,  if  they  were  intended  to 
signify  that  for  a  change  of  domicil  there  must  be  a  change  of 
nationality,  that  is,  of  natural  allegiance. 

That  would  be  to  confound  the  political  and  civil  states  of 
an  individual,  and  to  destroy  the  difference  between  patria  and 
dotnicilium. 

The  application  of  these  general  rules  to  the  circumstances  of 
the  present  case  is  very  simple.  I  concur  with  my  noble  and 
learned  friend  that  the  father  of  Colonel  Udny,  the  consul  at  Leg- 
horn, and  afterwards  at  Venice,  and  again  at  Leghorn,  did  not  by 
his  residence  there  in  that  capacity  lose  his  Scotch  domicil. 
Colonel  Udnv  was,  therefore,  a  Scotchman  by  birth.     But  I  am- 


DOMICIL.  75 

certainly  inclined  to  think  that  when  Colonel  Udny  married,  and 
(to  use  the  ordinary  phrase)  settled  in  life  and  took  a  long  lease 
of  a  house  in  Grosvcnor  Street,  and  made  that  a  place  of  abode  of 
himself  and  his  wife  and  children,  becoming,  in  point  of  fact,  sub- 
ject to  the  municipal  duties  of  a  resident  in  that  locality ;  and  when 
he  had  remained  there  for  a  period,  I  think,  of  thirty-two  years, 
there  being  no  obstacle  m  point  of  fortune,  occupation,  or  duty, 
to  his  going  to  reside  in  his  native  country ;  under  these  circum- 
stances, I  should  come  to  the  conclusion,  if  it  were  necessary  to 
decide  the  point,  that  Colonel  Udny  deliberately  chose  and 
acquired  an  English  domicil.  But  if  he  did  so,  he  as  certainly 
relinquished  that  English  domicil  in  the  most  effectual  way  by 
selling  or  surrendering  the  lease  of  his  house,  selling  his  furniture, 
discharging  his  servants,  and  leaving  London  in  a  manner  which 
removes  all  doubt  of  his  ever  intending  to  return  there  for  the 
purpose  of  residence.  If,  therefore,  he  acquired  an  English  domi- 
cil he  abandoned  it  absolutely  animo  et  facto.  Its  acquisition  being 
a  thing  of  choice,  it  was  equally  put  an  end  to  by  choice.  He  lost 
it  the  moment  he  set  foot  on  the  steamer  to  go  to  Boulogne,  and  at 
the  same  time  his  domicil  or  origin  revived.  The  rest  is  plain. 
The  marriage  and  the  consequences  of  that  marriage  must  be 
determined  by  the  law  of  Scotland,  the  country  of  his  domicil. 

Lord  Colonsay: — 

I  regard  this  case  as  one  of  very  considerable  importance, 
inasmuch  as  it  has  afforded  an  opportunity  for  bringing  out,  more 
clearly  than  has  been  done  in  any  of  the  former  cases,  the  radical 
distinction  between  domicil  of  origin  and  domicil  of  choice.  The 
principles  of  that  distinction  and  the  facts  have  been  so  clearly  put 
before  the  House  that  I  need  do  no  more  than  express  my  con- 
currence. 

Judgment: — Ordered  and  Adjudged,  that  the  said  interlocu- 
tor of  the  Lords  of  Session  in  Scotland,  of  the  Second  Division,  of 
the  14th  of  December,  1866,  complained  of  in  the  said  appeal,  be 
varied  by  substituting  for  the  words  "that  he  never  lost  his  said 
domicil  of  origin"  these  words,  "and  that  if  such  domicil  of  origin 
was  ever  changed,  yet  by  leaving  England  in  1844  his  domicil  of 
origin  reverted;"  and  that,  with  this  variation,  the  said  interlocu- 
tor be,  and  the  same  is.  hereby  affirmed,  and  that  the  said  petition 
and  appeal  be,  and  the  same  is,  hereby  dismissed  this  House.'' 
Solicitors  for  the  Appellant :  Covcrdale,  Lee,  Bristoiv  &  Withers. 
Solicitors  for  the  Respondent:  ]]'hitc,  Bronghton  &  JJliitc. 


76  PRIVATE    INTERNATIONAL    LAW. 


5T 


"Domicil  of  Origin.  Legitimate  Child. — The  domicil  of  origin  of  a 
legitimate  child  is  the  domicil  of  the  father  at  the  time  of  the  birth  of  the 
■child.  Price  v.  Price,  136  Pa.  St.  617,  27  All.  291;  Dalhousie  v.  AIcDowail, 
7  CI.  &  F.  817. 

Illegitimate  or  Posthumous  Child. — The  domicil  of  origin  of  an  ille- 
gitimate or  posthumous  child  is  the  domicil  of  the  mother  at  the  time  of 
the  child's  birth.  Blythe  v.  Ayres,  96  Cal.  532,  $1  Pac.  Rep.  915,  19  L.  R. 
A.  40;  Hoidton  V.  Loubcc,  35  Me.  411;  Udny  v.  Udny,  L.  R.  i  Scotch  App. 
Cas.  441. 

Foundling. — The  domicil  of  origin  of  a  foundling  is  the  place  where 
the  child  was  born  or  found.  Washington  v.  Beaver,  3  W.  &  S.  {Pa.) 
J48;  Dicey  Conflict  of  Lazvs,  page  JOi. 

Legitimated  Child. — The  domicil  of  origin  of  a  legitimated  child  is  the 
domicil  of  the  father  at  the  time  of  the  child's  birth.  Dicey  Conflict  of 
Lazvs,  page  104;  Munro  v.  Munro,  7  CI.  &  F.  817.  The  rule  seems  to  be 
that  one  born  illegitimate  but  afterwards  legitimated  stands  in  the  position 
he  would  have  occupied  if  he  had  been  born  legitimate,  and  that  his 
domicil  of  origin  is  the  state  or  country  where  his  father  was  domiciled 
.at  the  time  of  the  illegitimate's  birth. 

Minor  on  Conflict  of  Laws  disagrees  with  this  statement  of  the  rule. 
He  says :  "The  subsequent  acknowledgment  by  the  father,  or  his  inter- 
marriage with  the  mother,  which  by  the  law  of  many  countries  renders 
the  bastard  legitimate,  may,  as  we  shall  presently  see,  cause  the  infant's 
domicil  thereafter  to  be  governed  by  that  of  the  father.  But  the  bastard's 
domicil  in  such  case  would  cease  to  be  the  domicil  of  origin,  and  would 
become  a  constructive  domicil.  His  first  and  original  domicil  was  that  of 
the  mother,  and  hence  when  he  afterzcards  acquires  the  domicil  of  the 
father  by  reason  of  the  legitimation,  it  cannot  be  referred  back  to  the 
time  of  his  birth,  even  though  the  legitimation  itself  be  referred  to  that 
date.  The  domicil  of  origin  is  assigned  at  the  moment  of  birth  ;  whatever 
is  then  the  condition  of  the  child  will  determine  the  locality  of  that 
domicil.  H  he  be  then  illegitimate,  and  the  mother's  domicil  is  once 
assigned  him  legally  as  his  domiv~il  of  origin,  no  other  domicil  of  origin 
can  be  assigned  him.  That  would  be  to  give  him  two  domicils  at  the  same 
time."  Minor  Conflict  of  Lazvs,  Sec.  33;  Blythe  v.  Ayres,  96  Cal.  532,  Ives 
V.  McNicoll,  59  Ohio  St.  402,  43  L.  R.  A.  772. 

Domicil  of  Choice. — A  person  on  reaching  the  age  of  majority,  if  free 
rfrom  other  disabilities,  may  choose  a  permanent  home  for  himself,  which 
is  called  in  the  law  a  domicil  of  choice. 

Essentials  Necessary  to  Domicil  of  Choice. — The  essentials  necessary 
to  choose  a  new  domicil  are:  (i)  Capacity  to  choose,  (2)  Intention  to  take 
up  the  new  home  permanently  or  for  an  indefinite  time,  (3)  Actual  phy- 
sical presence  in  the  place  chosen.  Price  v.  Price,  156  Pa.  St.  617,  27  Atl. 
291:  Mitchell  V.  U.  S.,  21  Wall.  350;  Hartford  v.  Champion,  58  Conn.  268, 
20  Atl.  471:  Wilkins  v.  Marshall.  80  111.  74. 

Capacity  to  Choose. — A  person  sui  juris  may  change  his  domicil  as 
often  as  he  pleases.  To  effect  such  a  change,  naturalization  in  the  country. 
he  adopts  as  his  domicil  is  not  essential.  He  need  not  do  all  that  is  neces- 
sary to  divest  himself  of  his  original  nationality.  There  must  be  a  vol- 
untary change  of  residence;  the  residence  at  the  place  chosen  for  the 
domicil  must  be  actual;  to  the  factum  of  residence  there  must  be  added 
the  animus  manendi:  and  that  place  is  the  domicil  of  a  person  in  which  he 
has  voluntarily  fi.xed  his  habitation,  not  for  a  mere  temporary  or  special 
purpose,  but  with  a  present  intention  of  making  it  his  home,  unless  or  until 
something  which  is  uncertain  or  unexpected  shall  happen  to  induce  him 
to  adopt  some  other  permanent  home.  Harral  v.  Harral,  39  N.  J.  Eg.  279; 
Firth  V.  Firth,  50  N.  J.  Eg.  137,  24  Atl.  916. 


DOMICIL.  77 

Intention. — In  Bell  v.  Kennedy,  L.  R.  i  Scotch  &  Div.  App.  320, 
Bealc's  Cases  Conflict  of  Laics,  p.  140,  Hell,  the  deceased,  was  born  in 
Jamaica,  settled  and  married  there,  and  all  his  property  was  there.  Finally 
he  determined  to  leave  the  island,  and  he  did  so,  and  bought  property  in 
Scotland,  but  he  never  determined  upon  any  place  as  a  permanent  home. 
The  question  was  whether  Scotch  law  or  English  (Jamaica)  applied  as 
to  a  certain  part  of  his  estate.  And  it  was  held  that  he  had  not  lost  his 
domicil  in  Jamaica  by  his  residence  elsewhere.  He  was  resident  in  Scot- 
land, but  without  the  intention  of  remaining,  and  therefore  he  still 
retained  his  domicil  of  origin. 

Domicil  is  largely  a  question  of  intention.  Matzenhaiigh  v.  People, 
194  III.  loS;  Hascall  v.  Hafford,  107  Tenn.  S55-  Intention  alone  does  not 
control.  If  a  person  removes  to  another  place  with  an  intention  of  remain- 
ing there  for  an  indefinite  time,  it  becomes  his  domicil,  notwithstanding  he 
may  have  a  floating  intention  of  returning  to  his  old  residence  at  some 
future  time.  Ringgold  v.  Bailey,  5  Md.  1S6.  59  Am.  Dec.  107;  Berry  v. 
Wilcox,  44  Nebr.  82;  Contra  In  Re  Capdeviclle,  2  H.  &  C.  983. 

One  who  lets  his  house  in  the  town  of  his  domicil  for  several  succes- 
sive years,  and  establishes  himself  with  his  family  in  what  appears  to  be 
a  permanent  residence  in  another  town,  and  intends  to  go  on  living  in  the 
same  way,  cannot  retain  his  former  domicil  merely  by  desiring  to  do  so 
and  continuing  to  vote  there,  without  any  actual  intention  of  living  there 
again.     Dickinson  v.  Brookline,  181  Mass.  195. 

An  inhabitant  of  one  state  does  not  acquire  a  domicil  in  another  state 
by  merely  going  there  to  seek  employment,  with  the  intention  of  residing 
there  if  he  shall  find  it,  or  living  there  permanently  if  the  place  suits  him, 
and  the  contingency  never  happens.     Ross  v.  Ross,  103  Mass.  575. 

Two  things  must  concur  to  establish  domicil, — the  fact  of  residence, 
and  the  intention  of  remaining.  These  two  must  exist,  or  must  have 
existed,  in  combination. 

Where  a  person  entirely  abandons  his  former  residence  in  one  state 
with  no  intention  of  returning,  and  goes  with  his  family  to  another  resi- 
dence in  another  state  with  the  intention  of  making  the  latter  his  residence 
for  an  indefinite  time,  the  latter  state  is  his  domicil  notwithstanding  the 
fact  that,  after  he  and  his  family  arrive  at  the  new  residence,  which  is 
only  about  a  half  mile  from  the  state  line,  they  go  on  the  same  day  on  a 
visit  to  spend  the  night  with  a  neighbor  in  the  former  state  intending  to 
return  in  the  morning  of  the  next  day,  but  he  is  detained  there  by  sick- 
ness, until  he  dies,  and  never  does  in  fact  return  to  his  new  home.  White 
V.  Tennant,  31  West  Va.  790,  8  S.  E.  596- 

If  the  residence  and  the  intention  to  stay  indefinitely  concur,  a  domiciF 
is  acquired  at  once,  however  short  a  time  the  residence  or  the  intent  con- 
tinues. Absence,  however  long,  for  pleasure  or  travel,  or  business,  will 
not  change  domicil.  Dupuy  v.  Wiirtz,  53  N.  Y.  556;  Cadxvalader  v. 
Howell,  18  N.  J.  L.  138. 

P.  was  born  in  Scotland,  in  1792,  of  Scotch  parents.  In  1810  he 
Obtained  a  commission  in  the  army,  and  immediately  proceeded  with  his 
regiment  on  foreign  service,  and  served  abroad  till  1S60,  when  he  retired 
from  the  army.  From  i860  till  his  death  he  resided  in  lodgings,  hotels, 
and  boarding  houses  in  various  parts  in  England,  dying  in  1882,  intestate 
and  a  bachelor,  in  a  private  hotel  in  London,  leaving  no  real  estate  iiT 
England,  and  no  property  whatsoever  in  Scotland.  From  the  year  1810 
till  his  death  he  never  revisited  Scotland,  and  for  the  last  twenty  years  of 
his  life  never  left  the  territorial  limits  of  England.  Held  that  the  domicil 
of  the  intestate  at  his  death  was  Scotch.  The  facts  did  not  show  intention 
to  throw  oflf  his  Scotch  domicil.  In  Re  Patience,  29  Ch.  Div.  976  (1883). 
Actual  Presence. — The  mere  intent  to  acquire  a  new  domicil  without 


7Q  PRIVATE    INTERNATIONAL    LAW. 

physical  presence  at  the  new  place  will  not  change  the  domicil.  In  Re 
Raffeiicl,  2  Su:  &  Tr.  49;  In  re  Marrett,  36  Ch.  Div.  400;  Tahnadge  v. 
Talmadge,  66  Ala.  199.  ,  j       ■  •, 

There  must  be  actual  residence  in  the  place  chosen  as  a  new  domicil. 

Ennis  V.  Smith.  14  Hoiv.  399-  „  .       . 

In  Borland  i'.  Boston,  132  Mass.  89,  42  Am.  Rep.  424,  a  person  having 
his  domicil  in  Boston,  left  that  city  in  1876  with  his  family  to  reside  in 
Europe  for  an  indefinite  time,  with  the  fixed  purpose  never  to  return  to 
Boston  as  a  place  of  residence,  and  to  make  some  place  other  than  Boston 
his  residence  when  he  should  return;  and,  while  in  Europe,  before  May  i, 
1877,  fixed  upon  a  place  of  residence  in  another  state,  but  remained  in 
Europe  till  1879.  Held,  that  he  retained  his  domicil  in  Boston  for  the 
purposes  of  taxation  on  May  i,  1877. 

A  man  may  be  domiciled  in  a  country  without  having  a  fixed  habita- 
tion in  some  particular  spot  in  that  country.  In  re  Craignish,  3  Chancery 
180  {1892). 

In  Lozvry  v.  Bradley,  i  Specr's  Eg.  i;  39  Am.  Dec.  142,  Lowry  was 
domiciled  in  South  Carolina.  He  separated  from  his  wife,  and  pro- 
ceeded to  Alabama,  declaring  that  he  would  never  return  to  South  Car- 
olina. He  boarded  at  a  house  near  the  town  of  Blakely,  in  Alabama.  He 
did  not  buy  a  plantation,  neither  did  he  open  a  house  of  his  own.  The 
court  held  he  was  domiciled  in  Alabama.  The  mode  of  living  is  not 
material ;  whether  on  rent,  at  lodgings,  or  in  the  house  of  a  friend.  He 
left  South  Carolina  with  the  intention  of  never  returning;  he  reached 
Alabama  with  the  intent  to  remain  there,  these  together  constituted  a  new 
domicil. 

In  Cooper  v.  Beers,  143  ill.  25,  33  N.  E.  Rep.  61,  Cooper  and  wife 
were  domiciled  in  Missouri,  which  they  afterwards  abandoned,  intending 
to  ultimately  become  residents  of  either  Bloomington  or  Salem,  Illinois, 
but  before  they  had  determined  which  place,  or  had  adopted  any  home  at 
either,  she  died  intestate.  Her  domicil  of  origin  was  Illinois.  The  hus- 
band's domicil  of  origin  was  Ohio.  Counsel  contended  that  Mrs.  Cooper's 
domicil  at  her  death  was  Illinois.  Court  held  that  the  proof  fails  to  show 
with  certainty  a  fixed  and  unalterable  intention  to  make  Illinois  presently 
her  home.  No  time  was  ever  fixed  when  residence  should  begin,  and  no 
act  intended  as  an  act  of  removal  or  in  aid  of  removal  to  Illinois  is 
proved.  Mrs.  Cooper,  so  long  as  the  relations  between  herself  and  her 
husband  were  not  adverse,  his  domicil  was  her  domicil,  and  changed 
with  his  throughout  their  married  life.  There  is  no  pretence  in  argument, 
and  no  evidence  in  the  record  tending  in  any  degree  to  prove  that  Mrs. 
Cooper's  husband  was  ever  domiciled  in  Illinois. 

The  wife  cannot  change  the  domicil  of  the  husband.  Porterfield  v 
Augusta,  67  Me.  556;  Scloles  v.  Murray,  44  loiva  190. 

Where  the  boundary  line  between  the  towns  of  R.  and  N.  B.  passed 
through  a  dwelling  house  in  such  a  direction  as  that  that  portion  of  the 
house  which  was  in  N.  B.  was  sufificient  in  itself  to  constitute  a  habitation, 
while  the  portion  in  R.  was  not  sufficient  for  that  purpose,  it  was  held, 
that  a  person,  by  occupying  such  house,  acquired  a  domicil  in  N.  B. 

It  seems  that  if,  in  such  case,  the  line  had  divided  the  house  more 
equally,  the  fact  that  the  occupant  had  habitually  slept  in  that  part,  which 
was  in'  N.  B.,  would  be  a  preponderating  circumstance  to  show  that  he 
was  domiciled  in  that  town,  and,  in  the  absence  of  other  evidence,  would 
be  decisive  of  the  question.  Abington  v.  North  Bridgeivater,  23  Pick. 
{Mass.)  177. 

Motive. — Men  change  their  domiciles  with  very  varying  purposes  or 
motives.  The  desire  to  live  in  a  healthier  region,  to  have  better  social  or 
educational  advantages,  to  enjoy  better  church  privileges,  to  be  near  one's 


DOMICIL.  79 

jLlatives,  lo  live  in  a  new  and  growmg  country,  to  avoid  or  escape  arrest 
under  a  criminal  charge,  and  sometimes  to  be  relieved  of  disagreeable 
surroundings, — these  and  many  more  may  be  classed  among  the  purposes 
— sole  purposes,  if  you  please — with  which  men  change  their  residence. 
Yet,  if  the  change  ])e  in  fact  made  with  the  intent  to  acquire  a  new  resi- 
dence, either  permanent  or  of  an  indefinite  duration,  this  is  a  change  of 
•domicil.  The  intent  that  the  new  habitation  shall,  or  shall  not  be,  per- 
manent, or  of  indefinite  duration,  and  not  the  purpose  in  making  the 
change,  is  the  pivot  on  which  the  inquiry  turns.  Young  z'.  Pollak,  8§  Ala. 
439,  5  So.  Rcf-  -79 ."  M -Council  v.  Kcllcy,  138  Mass,  S72  (1885). 

Domicil  While  in  Transit. — A  domicil  once  acquired  continues  till  a 
new  one  is  gained.  While  in  transit  the  old  domicil  remains.  Littlefield 
V.  Inhabitants  of  Brooks,  30  Me.  473;  Shazi.'  v.  Shazc,  g8  Mass.  138. 

While  a  person  is  in  transit  three  might  claim  him  :  the  one  he  has 
left,  the  one  he  is  in,  and  the  one  to  which  he  is  proceeding.  In  such  case 
the  home  would  not  be  changed,  either  to  the  place  of  his  actually  bodily 
presence,  or  of  his  destination,  because  in  neither  would  the  fact  of  actual 
presence  and  the  intent  to  reside  concur.     Otis  v.  Boston,  12  Cusli.  44. 

Can  the  husband  by  sending  his  wife  and  household  goods  to  the  new 
home  acquire  a  domicile  there  before  he  actually  arrives  there  in  person? 
In  Hart  z'.  Horn,  4  Kan.  232,  the  court  said  no.  Actual  physical  presence 
of  the  husband  is  necessary  to  the  acquisition  of  a  new  domicil. 

In  Bangs  v.  Brczcster,  in  Mass.  3S2,  the  decision  was  the  other  way. 
In  this  case,  a  shipmaster  who  was  domiciled  at  Brewster  sent  his  wife 
to  Orleans,  where  they  expected  to  live  thereafter.  The  wife  arrived  at 
Orleans  about  six  months  before  her  husband.  The  court  said  that  by 
sending  his  wife  to  Orleans  with  the  intent  to  make  it  his  home,  he 
thereby  changed  his  domicil. 

The  weight  of  authority  in  this  country  is  with  the  Kansas  decision. 

BANK  V.   BALCOM,   1868. 
[35  Conn.  351.] 

Park,  J.  The  principal  qtiestion  in  this  case  is  in  regard  to 
the  domicil  of  Mrs.  Lewin  at  the  time  of  her  death.  She  died  in 
the  state  of  New  York,  and  the  administrator  of  her  estate  claims 
-that  her  domicil  at  the  time  was  in  Connecticut ;  while  the  admin- 
istrator of  the  estate  of  her  husband  claims  that  it  was  in  the  state 
of  New  York. 

It  appears  by  the  finding  of  the  court  that  her  husband  was 
;a  native  of  the  state  of  New  York ;  that  he  married  Mrs.  Lewin 
while  temporarily  residing  in  Connecticut ;  that  immediately  after 
their  marriage  they  went  to  the  state  of  Missouri,  and  resided 
there  till  the  spring  of  1862,  when  they  returned  to  Connecticut, 
and  after  residing  at  various  places  in  the  state,  became  perma- 
nently located  in  the  town  of  Branford.  While  their  domicil  con- 
tinued there,  Mrs.  Lewin  received  a  bequest  that  had  been  left  her 
by  her  brother.  Sometime  in  the  spring  of  t866  Mr.  Lewin  and 
his  wife  left  Branford  with  the  intent  to  abandon  his  residence 
there,  and  went  to  deneseo  in  the  state  of  New  York,  where  he 


80  PRIVATE    INTERNATIONAL    LAW. 

remained  till  the  death  of  his  wife,  which  occurred  in  the  month 
of  July  of  the  same  year. 

The  character  of  Mr.  Lewin's  residence  at  Geneseo  is  thus 
described  in  the  report  of  the  committee.  "He  did  not  go  to  Gene- 
seo with  the  intent  to  adopt  that  place  as  a  place  of  permanent 
residence.  He  and  his  wife,  being  in  feeble  health,  went  to  Gene- 
seo for  the  purpose  of  spending  the  summer  there  in  the  house  of 
his  brother-in-law.  in  the  hope  that  the  health  of  himself  and  wife 
might  be  benefited  by  the  change  of  air,  and  by  the  use  of  the 
water  of  certain  mineral  springs  near  Geneseo.  From  the  time- 
he  left  Branford  until  the  death  of  his  wife  he  had  no  definite 
intentions  in  regard  to  the  selection  of  any  place  as  the  place  of  his. 
future  residence.  So  far  as  he  had  any.  intention  on  the  subject 
it  was,  during  the  whole  period  of  time,  an  intention  conditional 
and  uncertain,  whereby  all  decision  in  his  mind  upon  the  question 
was  left  in  abeyance,  to  be  determined  in  the  future  by  the  turn 
which  his  wife's  disease  might  take,  and  by  other  circumstances- 
which  might  or  might  not  arise." 

In  the  month  of  August  of  the  same  year  he  left  Geneseo  and 
returned  to  Connecticut,  and  not  long  afterwards  became  perma- 
nently settled  in  the  town  of  Windham.  These  facts  render  it 
apparently  clear  that  Mr.  Lewin  was  not  domiciled  in  the  state  of 
New  York  at  the  time  his  wife  died. 

But  it  is  claimed  that,  inasmuch  as  he  was  a  native  of  the 
state  of  New  York,  and  inasmuch  as  he  left  Branford  with  no 
intention  of  returning  to  that  place  to  reside,  and  went  to  the  state 
of  New  York,  and  remained  there,  in  fact,  for  a  time,  no  matter 
what  the  character  of  his  abiding  may  have  been,  he  became  domi- 
ciled there,  on  the  principle  that  a  native  domicil  easily  reverts. 
Would  it  be  claimed  that  if  Mr.  Lewin  had  left  Branford  with  the 
intent  to  take  up  his  residence  in  the  state  of  Ohio,  and  on  his  way 
sojourned  a  few  days  in  the  state  of  New  York,  that  would  be 
sufficient?  And  what  real  difiference  is  there  between  that  case 
and  the  present?  In  both  cases  Mr.  Lewin  had  no  intention  of 
permanently  remaining  in  the  state  of  New  York.  All  the  differ- 
ence there  is  consists  in  the  fact,  that  in  one  case  his  mind  is  made 
up  in  regard  to  his  future  residence  and  in  the  other  it  is  not.  His 
abiding  in  both  cases  is  temporary.  We  said  in  another  case  upon 
the  present  circuit,  that  a  temporary  residence  did  not  change  its 
character  by  mere  lapse  of  time.  Whether  it  is  longer  or  shorter 
it  is  temporary  still.  But  the  principle  that  a  native  domicil  easily 
reverts  applies  only  to  cases  where  a  native  citizen  of  one  country 


DOMICIL.  81 

goes  to  reside  in  a  foreign  country,  and  there  acquires  a  domicil 
by  residence  without  renouncing  his  original  allegiance.  In  such 
cases  his  native  domicil  reverts  as  soon  as  he  begins  to  execute  an 
intention  of  returning;  that  is,  from  the  time  he  puts  himself  in 
motion  bona  fide  to  quit  the  country  sine  animo  rerertendi,  be- 
cause the  foreign  domicil  was  merely  adventitious,  and  de  facto, 
and  prevails  only  while  actual  and  complete.     The  Indian  Chief, 

3  Rob.  Adm.  R.,  17,  24;  The  Venus,  8  Cranch,  253,  280,  301  ;  The 
State  V.  Hallett,  8  Ala.,  159;  Case  of  Miller's  Estate,  3  Razvle, 
312,  319;  The  Ann  Green,  i  Gall.,  275,  286;  Catlin  v.  Gladding, 

4  Mason,  308;  Matter  of  Wrigly,  8  Wend.,  134,  140. 

This  principle  has  reference  to  a  national  domicil  in  its 
enlarged  sense,  and  grows  out  of  native  allegiance  or  citizenship. 
It  has  no  application  when  the  question  is  between  a  native  and 
acquired  domicil,  where  both  are  under  the  same  national  jurisdic- 
tion. It  was  so  held  in  the  case  of  Monroe  v.  Douglas,  5  Mad- 
dock,  379.  In  that  case  the  question  was  between  the  native 
domicil  of  a  party  in  Scotland,  and  a  domicil  of  residence  acquired 
by  the  same  party  in  India,  and  the  Vice  Chancellor  said  he  could 
find  no  difference  in  principle  between  the  original  domicil  of  the 
party  and  the  acquired  one  in  India.  See  also  i  American  Lead- 
ing Cases,  742. 

If  this  principle  does  not  apply  to  the  case  in  question,  tnen 
it  follows  from  this  finding  that  Mr.  Lewin  had  no  domicil  in  the 
state  of  New  York  when  his  wife  died,  but  his  domicil  at  that  time 
remained  in  the  town  of  Branford,  in  accordance  with  the  maxims 
that  universally  prevail  in  relation  to  this  subject,  that  every  per- 
son must  have  a  domicil  somewhere,  that  he  can  have  but  one 
domicil  for  one  and  the  same  purpose,  and  that  a  domicil  once 
acquired  continues  until  another  is  established.  Abington  %'. 
North  Bridgewater,  23  Pick.,  170;  Thorndike  v.  City  of  Boston, 
I  Met.,  242;  Crawford  v.  Wilson,  4  Batb.,  504;  Rue  High.  Appel- 
lant, 2  Doug.  (Mich.)  515;  Somerville  v.  Lord  Somerville.  5 
Vesey,  750;  Greene  z:  Greene,  11  Pick.,  410;  Walker  v.  Bank  of 
Circleville,  15  Ohio,  288. 

It  is  claimed  further,  that  the  bonds  in  question  became  the 
property  of  Mr.  Lewin  by  donatio  causa  niorfis.  But  it  is  clear 
that  no  gift  was  intended  by  Mrs.  Lewin,  as  plainly  appears  by 
her  letter  to  the  officers  of  the  bank,  and  besides,  a  gift  of  this 
nature  must  be  made  in  contemplation  of  the  approach  of  death 
and  must  be  given  to  take  effect  only  in  case  the  donor  dies.  Ray- 
6 


82  PRIVATE    INTERNATIONAL    LAW. 

mond  V.  Sellick,  lo  Conn.,  480.  Nothing  of  this  kind  appears  in 
the  case. 

Again,  it  is  claimed  that  the  court  of  probate  for  the  district 
of  New  Haven  granted  letters  of  administration  on  the  estate  of 
Mr.  Lewin  as  domiciled  in  the  state  of  New  York ;  and  it  is 
insisted  that  this  is  conclusive  on  the  subject.  But  the  judgment 
of  a  court  of  limited  jurisdiction  is  never  conclusive  of  a  jurisdic- 
tional question.  Its  jurisdiction  may  always  be  controverted. 
Sears  v.  Terry,  26  Conn.,  273;  Jochumsen  v.  Suffolk  Savings 
Bank,  3  Allen,  87 ;  2  Redficld  on  Wills,  49. 

We  advise  the  Superior  Court  that  the  administrator  of  the 
estate  of  Mrs.  Lewin  is  entitled  to  the  property. 

In  this  opinion  the  other  judges  concurred.® 

®A  domicil  once  acquired  remains  until  a  new  one  is  acquired  actually, 
facto  et  animo;  the  fact  and  intention  must  concur;  Story  Confl.  Lazt'S, 
Sec.  47.  There  is  one  recognized  exception  to  this  rule,  which  is  that  thj 
domicil  of  birth  easily  reverts,  and  therefore  if  a  man  has  acquired  a  new 
domicil  different  from  that  of  his  birth,  and  he  removes  from  it  with  an 
intention  to  resume  his  native  domicile,  the  latter  is  reacquired,  even  while 
he  is  on  his  way,  in  itiiiere;  for  the  native  domicil  reverts  the  moment  the 
acquired  domicil  is  given  up  with  the  intention  of  resuming  the  former ; 
Story  Conn.  Laws,  Sec.  47.  In  this,  as  in  other  cases,  exceptio  probat 
regidam.    Reed's  Appeal,  71  Pa.  St.  378. 


COMMERCIAL  DOMICIL. 

[Dicey  Conflict  of  Laws,  Appendix,  Note  4.*] 

1.     Person's    Character    Determined    by   DomiciL— 

In  time  of  war  the  answer  to  the  question  whether  a  person 
is  or  is  not  to  be  considered  an  alien  enemy  is,  in  most  cases  at  any 
rate,  to  be  determined  by  reference,  not  to  his  nationality  or  alle- 
giance, but  to  his  trading  residence  or  commercial  domicil.  Every 
person  domiciled  in  a  state  engaged  in  hostilities  with  our  own, 
whether  he  is  a  born  subject  of  that  state  or  not,  is  to  be  regarded 
as  an  alien  enemy ;  and,  speaking  generally,  a  person  domiciled  in 
a  neutral  country  is  to  be  regarded  as  for  commercial  purposes  a 
neutral,  even  though  he  be  in  fact  a  British  subject,  or  a  subject 
of  a  state  at  war  wath  England.  "The  position  is  a  clear  one,  that 
"if  a  person  goes  into  a  foreign  country,  and  engages  in  trade 
"there,  he  is,  by  the  law  of  nations,  to  be  considered  a  merchant  of 

*Thi5  "note"  is  inserted  by  permission  of  the  American  Publisher  of 
"Dicey  on  the  Conflict  of  Laws." 


COMMERCIAL     DOMICIL.  83 

"that  country,  and  a  subject  for  all  civil  purposes,  whether  that 
"country  be  hostile  or  neutral ;  and  he  cannot  be  permitted  to 
"retain  the  privileges  of  a  neutral  character  during  his  residence 
"and  occupation  in  an  enemy's  country."  A  person's  character, 
in  short,  as  a  friend  or  enemy,  is  in  time  of  war  to  be  determined 
by  what  is  termed  his  commercial  domicil.  Persons  who  are  com- 
mercially domiciled  in  a  neutral  country  are,  as  far  as  belligerents 
are  concerned,  neutrals ;  whilst,  on  the  other  hand,  persons  com- 
mercially domiciled  in  a  hostile  country  are,  whatever  their 
nationality  or  allegiance,  to  be  considered  enemies,  for  "persons 
"resident  in  a  country  carrying  on  trade,  by  which  both  they  and 
"the  country  were  benefited,  were  to  be  considered  as  the  subjects 
"of  that  country,  and  were  considered  so  by  the  law  of  nations,  at 
"least  so  far  as  by  that  law  to  subject  their  property  to  capture  by 
"a  country  at  war  with  that  in  which  they  lived."  Thus,  if  there 
be  a  war  between  England  and  France,  a  British  subject  residing 
and  trading  in  France  is  an  alien  enemy ;  whilst  a  British  subject 
or  a  French  citizen  who  resides  and  carries  on  business  in  Portu- 
gal is,  even  though  he  may  trade  with  France,  a  neutral. 

II.  Nature  of  Commercial  Domicil.— The  nature  of 
the  trading  residence  or  commercial  domicil,  which  determines  a 
person's  friendly  or  hostile  character  in  time  of  war,  may  be  made 
clear  by  comparing  such  commercial  domicil  with  the  domicil 
properly  so  called,  which  is  referred  to  in  the  body  of  this  treatise, 
and  is,  in  this  Note,  termed,  for  the  sake  of  distinction,  a  civil 
domicil.  Each  domicil  is  a  kind  of  residence,  each  bears  a  close 
resemblance  to  the  other,  but  they  are  distinguished  by  marked 
differences. 

(A)  Resemblance  of  commercl^l  domicil  to  civ^il  domi- 
cil.— A  trading  or  commercial  domicil  bears  so  close  a  resem- 
blance to  a  civil  domicil  that  it  is  often  described  in  language 
which  appears  to  identify  the  two  kinds  of  domicil.  Thus 
Arnould  writes  of  the  domicil  which  determines  a  person's  char- 
acter in  time  of  war :  "That  is  properly  the  domicil  of  a  person 
"where  he  has  his  true,  fixed,  permanent  home  and  principal 
"establishment,  in  which,  when  present,  he  has  the  intention  of 
"remaining  (ajiimus  uiancndi),  and  from  which  he  is  never 
"absent  without  the  intention  of  returning  (animus  revert cudi) 
"directly  he  shall  have  accomplished  the  purpose  for  which  he 
"left  it ;"  whilst  Duer  states  with  regard  to  the  national  character 
of  a  merchant :  "It  is  determined  solely  by  the  place  of  his  per- 
"manent  residence.     In  the  language  of  the  law,  it  is  fixed  by  his 


84  PRIVATE    INTERNATIONAL    LAW. 

"domicil.  He  is  a  political  member  of  the  country  into  which  by 
"his  residence  and  business  he  is  incorporated — a  subject  of  the 
"government  that  protects  him  in  his  pursuits — that  his  industry 
"contributes  to  support,  and  of  whose  national  resources  hii  own 
"means  are  a  constituent  part."  Nor  are  the  points  in  which  the 
two  kinds  of  domicil  resemble  each  other  hard  to  discern.  They 
are  each  kinds  or  modes  of  residence.  The  constituent  elements 
of  each  are,  first,  "residence;"  secondly,  a  "purpose  or  intention" 
(on  the  part  of  the  person  whose  domicil  is  in  question)  "with 
regard  to  residence."  In  spite,  however,  of  the  terms  used  by 
high  authorities,  and  of  the  undoubted  likeness  between  the  two 
kinds  of  domicil,  they  are  different  in  essential  particulars. 

(B)  Differences  between  civil  and  commercial 
DOMICIL. — The  fundamental  distinction  between  a  civil  domicil 
and  a  commercial  domicil  is  this :  A  civil  domicil  is  such  a  per- 
manent residence  in  a  country  as  makes  that  country  a  person's 
home,  and  renders  it,  therefore,  reasonable  that  his  civil  rights 
should  in  many  instances  be  determined  by  the  laws  thereof.  A 
commercial  domicil,  on  the  other  hand,  is  such  a  residence  in  a 
country  for  the  purpose  of  trading  there  as  makes  a  person's 
trade  or  business  contribute  to  or  form  part  of  the  resources  of 
such  country,  and  renders  it,  therefore,  reasonable  that  his  hostile, 
friendly,  or  neutral  character  should  be  determined  by  reference 
to  the  character  of  such  country.  When  a  person's  civil  domicil 
is  in  question,  the  matter  to  be  determined  is  whether  he  has  or 
has  not  so  settled  in  a  given  country  as  to  have  made  it  his  home. 
When  a  person's  commercial  domicil  is  in  question,  the  matter  to 
be  determined  is  whether  he  is  or  is  not  residing  in  a  given 
country  with  the  intention  of  continuing  trade  there.  From  this 
fundamental  distinction  arise  the  following  differences : — 

(i)  As  to  residence. — Residence  in  a  country  is  in  general 
Prima  facie  evidence  of  a  person  having  there  his  civil  domicil, 
but  it  is  only  prima  facie  evidence,  the  effect  of  which  may  be 
quite  got  rid  of  by  proof  that  a  person  has  never  lived  in  the  coun- 
try with  the  intention  of  making  it  his  permanent  home.  But 
residence  is  far  more  than  prima  facie  evidence  of  a  person's  com- 
mercial domicil.  In  time  of  war  a  man  is  taken  to  be  domiciled 
for  commercial  purposes  in  the  country  where  he  in  fact  resides, 
and,  if  he  is  to  escape  the  effect  of  such  presumption,  he  must 
prove  affirmatively  that  he  has  the  intention  of  not  continuing  to 
reside  in  such  country.  A  long  period  further  of  residence, 
which,  as   regards   civil   rights,   is  merely  evidence  of   domicil. 


COMMERCIAL     DOMICIL.  85 

might,  it  would  seem,  be  absolutely  conclusive  in  determining 
national  character  in  time  of  war. 

(2)  As  to  intention. — The  intention,  or  animus,  which,  in 
combination  with  residence,  constitutes  a  civil  domicil,  is  difterent 
from  the  intention  or  animus  which,  together  with  residence, 
makes  up  a  commercial  domicil. 

The  intention  which  goes  to  make  up  the  existence  of  a  civil 
domicil  is  the  present  intention  of  residing  permanently,  or  for  an 
indefinite  period,  in  a  given  country.  The  intention  which  goes 
to  make  up  the  existence  of  a  commercial  domicil  is  the  intention 
to  continue  residing  and  trading  in  a  given  country  for  the  present. 
The  former  is  an  intention  to  be  settled  in  a  country  and  make  it 
one's  home,  the  latter  is  an  intention  to  continue  residing  and 
trading  there.  Hence,  on  the  one  hand,  a  person  does  not  acquire 
a  civil  domicil  by  residence  in  a  country  for  a  definite  purpose  or 
period,  and  cannot  by  residence  in  one  country,  e.  g.,  France,  get 
rid  of  a  domicil  in  another,  e.  g.,  England,  if  he  retains  the  pur- 
pose of  ultimately  returning  to  England,  as  his  home ;  while,  on 
the  other  hand,  the  intention  "which  the  law  attributes  to  a  person 
"residing  in  a  hostile  country,  is  not  disproved  by  evidence  that  he 
"contemplated  a  return  to  his  own  country  at  some  future  period. 
"If  the  period  of  his  return  is  wholly  uncertain — if  it  remains  in 
"doubt  at  what  time,  if  at  all,  he  will  be  able  to  accomplish  the 
"design, — the  design,  however  seriously  entertained,  will  not  avail 
"to  refute  the  legal  presumption.  A  residence  for  an  indefinite 
"period  is,  in  the  judgment  of  law,  not  transitory,  but  permanent. 
"Even  when  the  party  has  a  fixed  intention  to  return  to  his  own 
"country  at  a  certain  period,  yet  if  a  long  interval  of  time — an 
"interval  not  of  months,  but  of  years — is  to  elapse  before  his  plan 
"of  removal  can  be  efifected,  no  regard  will  be  had  to  an  intention 
"of  which  the  execution  is  so  long  deferred." 

D,  domiciled  in  England,  goes  to  British  India  with  the  full 
intention  of  residing  there  till  he  has  made  his  fortune  in  trade, 
and  of  then  returning  to  England,  whore  he  has  his  domicil  of 
origin.  He  resides  in  India  for  twenty  years.  He  retains  his 
English  civil  domicil.  Suppose,  however,  that  D.  under  exactly 
similar  circumstances  in  every  other  respect,  takes  up  his  resi- 
dence not  in  British  India,  but  in  the  Portuguese  settlement  in 
India,  and  after  war  has  broken  out  between  England  and  Portu- 
gal, continues  to  reside  and  trade  in  the  Portuguese  settlement, 
though  still  retaining  his  intention  of  ultimately  rctunn'ng  to  Eng- 
land.    D  thereupon  acquires  a  Portuguese  commercial  domicil. 


86  PRIVATE    INTERNATIONAL    LAW. 

(3)  As  to  abandonment. — The  rules  as  to  abandonment  are 
different,  A  civil  domicil  once  acquired  can  be  changed  only  by 
complete  abandonment  in  fact  of  the  country  where  a  person  is 
domiciled.  The  intention  to  change,  even  if  accompanied  by  steps 
for  carrying  out  a  change,  will  not,  it  would  seem,  produce  a 
change  as  long  as  the  person  whose  domicil  is  in  question  con- 
tinues in  fact  to  reside  in  the  country  where  he  has  been  domiciled. 

A  commercial  domicil  in  time  of  war  can,  it  would  seem,  be 
cnanged,  under  some  circumstances,  by  the  intention  to  change  it, 
accompanied  by  steps  taken  for  the  purpose  of  effecting  a  change. 
"The  native  national  character,  that  has  been  lost,  or  partially  sus- 
"pended,  by  a  foreign  domicil,  easily  reverts.  The  circumstances, 
"by  which  it  may  be  restored,  are  much  fewer  and  slighter  than 
"those  that  were  originally  necessary  to  effect  its  change.  The 
"adventitious  character,  that  a  domicil  imposes,  ceases  with  the 
"residence  from  w^hich  it  arose.  It  adheres  to  the  party  no  longer 
"than  he  consents  to  bear  it.  It  is  true,  his  mere  intention  to 
"remove — an  intention  not  manifested  by  overt  acts,  but  existing 
"secretly  in  his  own  breast,  ...  is  not  sufficient  to  eft'ace  the 
"character  that  his  domicil  impressed ;  something  more  than  mere 
"verbal  declarations,  some  solid  fact,  showing  that  the  party  is  in 
"the  act  of  withdrawing,  is  always  necessary  to  be  proved ;  still, 
''neither  his  actual  return  to  his  own  country,  nor  even  his  actual 
"departure  from  the  territories  of  that  in  which  he  resided,  is 
"indispensable/' 

(4)  As  to  domicil  by  operation  of  lazv. — It  may  fairly  be 
doubted  whether  the  rules  as  to  domicil  by  operation  of  law,  e.  g., 
in  the  case  of  persons  who  have  in  fact  no  home,  or  of  dependent 
persons,  which  play  so  large  a  part  in  the  law  of  civil  domicil,  can 
be  without  considerable  limitations  applied  to  the  ascertainment 
of  commercial  domicil.  D,  for  example,  is  a  French  sul^ject, 
whose  domicil  of  origin  is  English.  He  has  an  acquired  domicil 
in  France.  Both  France  and  America  declare  war  against  Eng- 
land. D  thereupon  leaves  France,  intending  to  settle  in  New 
York.  He  resumes  during  the  transit  from  one  country  to 
another  his  domicil  of  origin ;  but  it  can  hardly  be  supposed  that 
he  is  not  during  such  transit  an  alien  enemy.  D,  again,  is  an 
infant,  or  a  married  woman,  carrying  on  a  commercial  business 
on  his  or  her  own  account  in  France  during  a  war  with  England. 
It  can  hardly  be  maintained  that  the  fact  of  the  father  in  the  one 
case,  or  the  husband  in  the  other,  having  an  English  domicil  and 


COMMERCIAL    DOMICIL.  87 

being  resident  in  England  will  free  D  from  the  character  of  an 
alien  enemy. 

(5)  As  to  special  rules. — There  are  one  or  two  rules  as  to 
commercial  domicil  which  can  have  no  application  to  an  ordinary 
civil  domicil.  Thus,  according  to  American  decisions  at  least,  an 
American  citizen  (and  the  same  principle  would  perhaps  be 
applied  by  English  Courts  to  British  subjects)  cannot,  by  emigra- 
tion from  his  own  country  during  the  existence  of  hostilities, 
acquire  such  a  foreign  domicil  as  to  protect  his  trade  during  the 
war  against  the  belligerent  claims  either  of  his  own  country  or  of  a 
hostile  power.  So,  again,  a  neutral  merchant  may,  at  any  time, 
withdraw  his  property  and  funds  from  a  hostile  country,  and  such 
a  withdrawal  may  restore  him  to  his  neutral  domicil.  But  whether 
the  subject  of  a  belligerent  state  can,  after  the  outbreak  of  hos- 
tilities, withdraw  from  a  hostile  state  so  as  to  escape  the  imputa- 
tion of  trade  with  the  enemy  is  doubtful.  If  the  withdrawal  can 
be  eitected  at  all.  either  it  must  be  done  within  a  short  period  after 
the  outbreak  of  war,  or  any  delay  in  effecting  it  must  be  shown 
to  have  arisen  from  necessity  or  from  compulsion. 

III.  Person's  Civil  Need  Not  Coincide  With  His  Com- 
mercial Domicil. — From  the  distinctions  between  a  civil  and  a 
commercial  domicil,  the  conclusion  follows  that  a  person  may 
have  a  civil  domicil  in  one  country,  and,  at  the  same  time,  a  com- 
mercial domicil  or  residence  in  another.  Thus,  suppose  that  D's 
domicil  of  origin  is  English,  and  that  he  goes  to  France  and  sets 
up  in  trade  there  without  any  purpose  of  making  France  his  per- 
manent home,  but  with  the  distinct  intention  of  returning  to 
England  within  ten  years.  He  clearly  retains  his  English 
domicil  of  origin ;  and  the  outbreak  of  a  war  between  France  and 
England  does  not  of  itself  affect  D's  civil  domicil. 

If  D  continues  to  reside  and  trade  in  France  after  the  out- 
break of  hostilities,  though  without  any  change  of  intention  as  to 
the  time  of  his  stay  in  France,  he  will  acquire  a  French  commer- 
cial domicil.  In  other  words,  he  will  have  a  civil  domicil  in  Eng- 
land and  a  commercial  domicil  in  France. 

Nor  is  this  fact  really  inconsistent  with  Rule  3,  that  no  person 
can,  at  the  same  time,  have  more  than  one  domicil.  It  only  illus- 
trates the  fact  constantly  dwelt  upon  in  this  treatise,  that  residence 
is  different  from  domicil,  and  that  a  person  while  domiciled  in  onq 
country  may,  in  fact,  reside  in  another.^ 

'A   Chinaman   who   resides   in   the   United    States,   and   who   is    doing 
business  here,  has  a  commercial   domicil  here,  and   does  not   forfeit  such 


88  PRIVATE    INTERNATIONAL    LAW. 

domicil  by  a  temporary  absence  at  his  domicil  of  origin.  Laiij  Ow  Bew  v. 
United  States,  144  U.  S.  47;  United  States  v.  Chin  Quong  Look,  52  Fed. 
Rep.  203;  Fong  Yue  Ting  v.  United  States,  149  U.  S.  698. 

An  English  company  with  a  permanent  general  agency  in  New  York 
was  held  as  to  business  done  through  such  agency  to  have,  in  time  of  war, 
a  commercial  domicil  in  New  York.  Martine  v.  Int.  Life  Ins.  Co.,  53 
N.  Y.  359- 


CHAPTER  IV. 

DOMICIL  OF  PARTICULAR  PERSONS. 

WATERTOWN  v.  GREAVES,  igoi. 
[50  C.  C.  App.  172,  112  Fed.  Rep.  183.] 

1.  Domicil  of  Particular  Persons.         3.  Domicil  and  Acts  in  Uncivilized 

2.  Domicil  and  Taxation.  Countries. 

Married  Women. 

In  Error  to  the  Circuit  Court  of  the  United  States  for  the 
District  of  Massachusetts. 

Brown,  District  Judge.  This  writ  of  error  is  brought  to 
review  the  rulings  of  the  Circuit  Court  of  the  District  of  Massa- 
chusetts in  an  action  of  tort  for  the  recover-  of  damages  for 
injuries  caused  by  a  defective  sidewalk. 

The  first  question  to  be  considered  is  that  of  jurisdiction. 
The  plaintiff  below  sued  as  a  citizen  of  Rhode  Island.  It  is  con- 
tended for  the  town  that  upon  the  evidence  the  plaintiff  below  was 
not  a  citizen  of  Rhode  Island,  and  that  the  Court  erred  in  the  in- 
structions to  the  jury  as  to  the  right  of  a  married  woman,  deserted 
b>  her  husband,  to  establish  an  independent  domicil. 

That  the  plaintiff"  went  to  Rhode  Island  before  the  date  of 
the  writ,  April  3.  1900.  with  the  intention  of  living  there  perma- 
nentlv,  must  be  taken  as  a  fact  established  by  a  special  finding  of 
the  jury.  Other  relevant  facts  are  that  the  plaintiff  and  her  hus- 
band resided  together  in  Lowell,  Mass.,  and  were  citizens  of  that 
state  until  some  time  in  1892  or  1893.  when  her  husband  deserted 
her,  and  has  never  since  lived  in  Lowell  or  contributed  to  her  sup- 
port ;  that  she  has  not  seen  or  heard  from  him  since,  and  that  at 
the  date  of  trial  she  did  not  know  whether  he  was  alive  or  dead; 
that  she  never  had  procured  a  divorce,  and,  so  far  as  she  knew, 
her  husband  had  never  made  application  for-  a  divorce.  The 
record  contains  no  evidence  of  the  circumstances  under  which 
the  husband  of  the  plaintiff  below  deserted  her;  but.  inasnuich 
as  it  is  the  ordinary  duty  of  the  husband  to  abide  with  the  family, 
there  is.  in  the*  present  case,  a  sufficient  presumption  that  the  wife 
was  guilty  of  no  fault,  in  the  absence  of  any  suggestion  to  the  con- 


90  PRIVATE    INTERNATIONAL    LAW. 

trary  based  on  the  evidence.  The  evidence  was  insufficient  to 
estabUsh  a  presumption  of  death.  Neither  was  there  any  evidence 
that  the  husband  had  left  the  state  of  Massachusetts,  or  had 
changed  the  citizenship  which  he  had  at  the  date  of  desertion. 
It  appeared  that  the  plaintitf  was  obhged  to  support  herself  by  her 
own  exertions. 

The  third  assignment  of  error  is  as  follows : 

"The  court  erred  in  instructing  the  jury  that,  while  the  general  rule  of 
law  is  that  the  domicil  and  citizenship  of  a  wife  follow  that  of  her  husband, 
still,  if  a  husband  deserts  his  wife,  as  there  is  evidence  tending  to  show  was 
the  fact  in  this  case,  the  wife's  dcmicil  would  not  necessarily  follow  that  of 
her  husband;  that  plaintiff  mightacquire  a  domicil  and  citizenship  in  Rhode 
Island,  independent  of  that  of  her  husband,  if  he  were  living;  that  -if  the 
husband  deserted  his  wife  and  abandoned  his  residence,  and  went  to  parts 
unknown,  and  there  remained  for  years  without  having  any  communication 
with  his  wife,  and  without  making  any  contribution  to  her  support,  the  wife 
had  the  right  to  acquire  a  domicil  and  citizenship,  if  she  choose  so  to  do, 
in  a  place  different  from  that  of  the  domicil  and  citizenship  of  her  husband 
at  the  time  he  deserted  her,  or  from  the  place  of  the  domicil  or  citizenshi-^ 
of  the  husband  after  such  desertion." 

It  is  well  settled  that  each  state  has  the  right  to  determine 
the  civil  status  and  capacities  of  its  inhabitants.  Pennoyer  v.  Ne1f, 
95  U.  S.  714.  722,  24  L.  Ed.  565;  Hekking  v.  Pfaff  (C.  C.)  82 
Fed.  403. 

An  examination  of  the  decisions  of  the  Supreme  Court  of 
Rhode  Island  upon  the  question  of  the  right  of  a  deserted  wife  to 
establish  for  herself  an  independent  domicil  satisfies  us  that  there 
was  no  error  in  the  instructions  above  set  forth. 

In  Ditson  v  Difson,  4  R.  I.  87  (a  leading  case  in  this  coun- 
try; see  Atherton  v.  Atherion,  181  U.  S.  166,  21  Sup.  Ct.  544,  45 
L.  Ed.  794),  Chief  Justice  Ames  said,  on  page  107: 

"Although,  as  a  general  doctrine,  the  domicil  of  the  husband  is,  by  law, 
that  of  the  wife,  yet  when  he  commits  an  offense,  or  is  guilty  of  such  dere- 
liction of  duty  in  the  relation  as  entitles  her  to  have  it  either  partially  or 
totally  dissolved,  she  not  only  may,  but  must,  to  avoid  condonation,  estab- 
lish a  separate  domicil  of  her  own.  This  she  may  establish— nay,  when 
deserted  or  compelled  to  leave  her  husband,  necessity  frequently  compels 
her  to  establish— in  a  different  judicial  or  state  jurisdiction  than  that  of  her 
husband  according  to  the  residence  of  her  family  or  friends.  Under  such 
cinnimstances  she  gains,  and  is  entitled  to  gain,  for  the  purposes  of  juris- 
diction a  domicil  of  her  own,  and,  especially  if  a  native  of  the  state  to 
which  she  flies  for  refuge,  is,  upon  familiar  principles,  readily  redintegrated 
in  her  old  domicil." 

The  Court  says  also: 

"Wh-itever  was  the  former  domicil  of  the  petitioner,  we  are  satisfied 
that  she  is,  and  has,  for  upwards  of  the  last  three  years,  been  a  domiciled 


DOMICIL    OF    PARTICULAR    PERSONS.  91 

citizen  of  Rhode  Island,  her  only  home,  in  the  house  of  her  father,  and  that 
as  such  citizen,  and  upon  such  notice,  we  have  power  and  jurisdiction  over 
her  case,  and  to  change  her  condition  from  that  of  a  married  to  that  of  a 
single  woman,  granting  to  her  the  relief  which,  under  like  circumstancs,  the 
law  and  policy  of  Rhode  Island  accords  to  all  its  citizens." 

From  this  decision  it  would  appear  to  be  the  law  of  Rhode 
Island  that  a  married  woman,  unlawfully  deserted  by  her  hus- 
band, may  establish  an  independent  domicil,  and  thus  become  a 
citizen  of  the  state  of  Rhode  Island. 

It  is  contended  that  this  decision  is  merely  to  the  effect  that 
she  may  establish  a  domicil  for  the  purposes  of  divorce.  We  re- 
gard it,  however,  as  a  clear  and  learned  statement  of  limitations, 
upon  the  general  rule  that  the  domicil  of  the  husband  is  that  of 
the  wife. 

The  learned  Chief  Justice,  after  stating  the  general  doctrine, 
proceeds : 

"A  more  proper  case  for  the  application  in  favor  of  a  petitioner  for 
divorce  of  the  foregoing  principles  relating  to  the  jurisdiction  of  the  court 
over  her  case,  and  to  the  question  of  her  domicil  in  this  state,  can  hardly 
be  imagined." 

From  this  decision,  it  is  apparent  that  the  Court  did  not  con- 
sider a  judicial  decree  essential  as  a  condition  precedent  to  the 
establishment  of  citizenship,  since  it  is  in  express  terms  stated 
that  the  petitioner,  for  upwards  of  three  years,  had  been  a  domi- 
ciled citizen  of  Rhode  Island. 

For  the  town  it  is  contended  that  the  right  of  a  married 
woman  is  limited  to  a  quasi  domicil  for  the  purpose  of  divorce, 
and  that  this  decision  goes  no  farther.  But  the  question  of  citizen- 
ship  was  directly  passed  upon,  and  citizenship  was  held  to  exist 
upon  a  state  of  facts  showing  unjustifiable  desertion. 

Moreover,  the  case  of  Hozdaml  v.  Granger,  22  R.  I.  2,  45  Atl. 
740,  contains  a  statement  by  the  Supreme  Court  of  Rhode  Island 
w^hich  seems  to  us  satisfactory  evidence  that  the  domicil  which  the 
wife  may  acquire  upon  desertion  is  not  merely  a  quasi  domicil  for 
the  purpose  of  divorce,  leaving  her  general  rights  as  a  citizen  of 
the  state  m  abeyance  until  the  pronouncement  of  a  decree  of 
divorce,  a  vinculo  or  a  mensa  et  thoro,  but  a  full  and  independent 
domicil  for  all  purposes.  This  case  was  an  action  brought  by  a 
married  woman  to  recover  the  amount  of  a  personal  property  tax 
paid  under  protest.  The  husband,  on  the  day  of  the  assessment, 
was  a  domiciled  inhabitant  of  the  state  of  Rhode  Island.  The 
wife  was  at  that  time  living  in  Asheville.  N.  C,  for  her  health. 


•92  PRIVATE    INTERNATIONAL    LAW. 

with  the  intention  of  making  said  place  her  permanent  home,  and 
■contended  that  she  was  a  citizen  of  North  Carohna,  and  therefore 
not  hable  to  a  personal  tax  in  Rhode  Island.  There  was  no  aban- 
donment. The  persons  were  living  apart,  but  the  unity  of  the 
marriage  relation  existed  undisturbed.  No  question  of  divorce 
was  involved.     The  Court  said : 

"After  a  careful  examination  of  the  authorities,  however,  we  have  come 
-to  the  conclusion  that  though  a  wife  may  acquire  a  domicil  distinct  from 
that  of  her  husband  whenever  it  is  necessary  or  proper  for  her  to  do  so,  as, 
for  instance,  where  the  husband  and  wife  are  living  apart  by  mutual  consent 
(In  re  Florance,  54  Hun.  328,  7  N.  Y.  Supp.  578);  or  where  the  wife 
lias  been  abandoned  by  the  husband  (Schute  v.  Sargent,  67  N.  H.  305,  36 
Atl.  282)  ;  or  for  purpose  of  divorce  (Ditson  v.  Ditson,  4  R.  I.  87)  ;  or,  m 
short,  wl-.cncver  the  wife  has  ndversary  interests  to  those  of  her  husband,— 
she  cannot  acquire  such  a  domicil  so  long  as  the  unity  of  the  marriage  rela- 
tion continues,  notwithstanding  that  from  consideration  of  health,  as  in  the 
present  case,  or  of  expediency,  one  of  the  parties,  with  the  consent  of  the 
other,  is  actually  living  in  a  different  place  from  the  other." 

See,  also,  JVhitc  v.  irhilc,  18  R.  I.  292,  27  Atl.  506. 

The  defendant,  now  plaintiff  in  error,  contends  that  "the 
proposition  that  the  exception  made  in  divorce  cases  to  the  com- 
mon-law rule,  as  to  the  domicil  of  the  wife  following  that  of  the 
husband,  does  not  extend  to  proceedings  other  than  a  suit  for 
divorce,  was  expressly  declared  by  the  Supreme  Court  in  Barber 
V.  Barber,  21  How.  582,  16  L.  Ed.  226." 

We  do  not  so  read  this  opinion.  The  point  there  involved 
was  whether  a  woman  who  had  been  divorced  a  mensa  et  thoro 
might  establish  an  independent  domicil.  It  was  decided  that  she 
could.  It  was  neither  decided  nor  intimated  in  the  opinion  that 
an  independent  domicil  could  not  be  established  without  a  judicial 
decree.  The  Court,  seems,  however,  to  have  recognized  the  fol- 
lowing prinicples : 

The  rule  that  the  domicil  of  the  wife  is  that  of  the  husband 
is  probably  found  to  rest  upon  the  legal  duty  of  the  wife  to  follow 
and  dwell  with  the  husband  wherever  he  goes. 

That,  upon  the  commission  of  an  offense  which  entitles  her 
to  have  the  marriage  dissolved,  she  is  discharged  thereby  immedi- 
ately, and  without  a  judicial  determination  of  the  question,  from 
her  duty  tr.  follow  and  dwell  with  him. 

That  if  the  husband  abandons  their  domicil  and  his  wife,  and 
relinquishes  altogether  his  marital  control  and  protection,  he  yields 
up  that  power  and  authority  over  her  which  alone  make  his 
domicil  hers. 


DOMICIL    OF    PARTICULAR    PERSONS.  93 

Upon  pa^c^e  594.  21  How.,  and  page  230,  16  L.  Ed.,  of  the 
opinion,  in  a  quotation  from  Bishop,  appears  this  language : 

"Courfs,  hcwever,  may  decline  tn  rccnsnize  such  clomicil  in  a  collateral 
proceeding;  that  is,  a  proceeding  other  than  a  suit  for  divorce." 

It  may  be  considered,  in  some  jurisfhctions,  that  the  appro- 
priate proceeding  for  estabhshing  the  wrongs  which  entitle  a  wife 
to  an  independent  domicil  is  a  proceeding  for  divorce  a  vinculo 
or  a  mensa  et  thoro,  and  that,  m  consequence  of  the  difficulties 
of  establishing  these  wrongs  in  a  collateral  inquiry,  the  Courts 
should  require  an  adjudication  by  a  divorce  court  which  deter- 
mines finally  and  for  all  purposes  the  status  of  the  wife.  See 
IMinor,  Conf.  Laws,  §  47.  But  this  is  rather  a  rule  of  procedure 
or  of  evidence  than  a  rule  of  right,  and  is  analogous  to  the  rule 
of  equity  that  a  creditor  shall  establish  his  right  by  a  judgment 
of  law,  before  attacking  in  equity  a  fraudulent  conveyance. 

There  seems  to  be  no  conflict  of  authority  as  to  the  point  that, 
by  the  delictum  of  the  husband,  the  wife  is  immediately  absolved 
from  her  duty  to  follow  and  dwell  with  him,  and  that  she  is  there- 
after entitled,  as  a  matter  of  right,  to  choose  her  own  domicil. 

We  are  of  the  opinion  that  the  question  whether,  in  order 
to  assert  or  establish  this  right  in  a  collateral  proceeding,  she 
must  first  procure  a  judicial  decree  establishing  her  status,  as 
against  her  husband  and  all  the  world,  is  a  distinct  question. 

If  a  plea  in  abatement  had  raised  the  question  of  the  wife's 
domicil,  and,  before  a  hearing  on  the  plea,  she  had  applied  to  the 
divorce  courts  of  Rhode  Island  and  procured  a  decree  of  divorce, 
that  decree,  so  far  as  the  question  of  citizenship  was  concerned, 
would  give  her  no  new  rights,  but  would  furnish  her  with  judicial 
evidence  that  before  the  bringing  of  action  she  was  a  citizen  of 
Rhode  Island. 

The  rulings  of  the  Circuit  Court  as  to  the  legal  rights  of  a 
deserted  wife,  in  the  case  at  bar,  were  in  accordance  with  the  law 
as  stated  in  Checvcr  v.  Wilson,  9  Wall.  108,  124,  19  L.  Ed.  604. 
609: 

"Tlie  rule  is  that  she  may  acquire  a  separate  domicil  whenever  it  is 
necessary  or  proper  that  she  should  do  so.  The  ritjht  springs  from  the 
necessity  for  its  exercise,  and  endures  as  long  as  the  necessity  continues. 
The  proceeding  for  a  divorce  may  be  instituted  where  the  wife  has  her 
domicil." 

This  implies  that  the  domicil  may  be  acquired  prior  to  anc! 
independently  of  proceedings  for  divorce.    And  this  implication  is 


94  PRIVATE    INTERNATIONAL    LAW. 

in  agreement  with  the  express  decision  of  the  Rhode  Island  court. 
Moreover,  various  expressions  of  the  Supreme  Court  seem  to 
recognize  that,  if  the  wife  is  Hving  apart  by  the  fault  of  the  hus- 
band, the  rule  that  his  domicil  is  her  domicil  is  inapplicable.  Thus, 
in  Alhcrton  v.  Athcrion,  i8i  U.  S.  155,  21  Sup  Ct.  544.  45  L.  Ed. 
794,  are  repeated  the  expressions  of  the  Court  in  Cheely  v. 
Clayton,  no  U.  S.  701,  705,  709,  4  Sup.  Ct.  328,  330,  2d>  L.  Ed. 
298,  299 : 

"If  a  wife  IS  living  apart  from  her  husband  without  sufficient  cause,  his 
^omicil  is  in  law  her  dcmicil" ;  and  "it  is  hard  to  see  how,  if  she  unjusti- 
fiably refuses  to  live  with  her  husband,  =*•  '^  *  she  could  lawfully  acquire  in 
his  lifetime  a  separate  dom.icii  in  another  state,"  etc. 

The  question  whether  the  wife,  in  order  to  bring  suit  as  a 
citizen  of  another  state  from  that  in  which  her  husband  is  dom- 
iciled, must  establish  her  right  to  acquire  a  separate  domicil  by 
the  judgment  of  a  proper  tribunal  in  a  direct  proceeding  for  that 
■Durpose,  is  one  that  presents  difficulties. 

It  may  be  said  that  there  are  practical  difficulties  in  trying 
collaterally  the  relations  of  husband  and  wife,  and  in  determining 
whether  or  not  the  husband  has  been  guilty  of  such  a  delictum  as 
justifies  a  separate  domicil.  But  similar  difficulties  do  not  pre- 
clude a  husband  from  asserting,  in  defense  of  an  action  for  sup- 
plies furnished  to  a  wife,  the  adultery  or  other  misconduct  of  the 
wife.  Such  cases  involve  a  collateral  inquiry  into  the  rights  of 
husband  and  wife  arising  from  a  breach  of  the  obligations  of  mar- 
riage, yet  it  has  never  been  held  that  the  husband  must  establish 
the  fact  of  the  wife's  delictum  in  a  direct  proceeding  for  that  pur- 
pose.   Gill  V.  Read,  5  R.  I.  343,  73  Am.  Dec.  73. 

The  wife  may  not  desire  a  divorce  a  vinculo  or  a  mensa  et 
thoro ;  she  may  be  ready  to  condone  the  fault  of  the  husband  in 
case  he  shall  return ;  she  may  desire,  for  her  own  sake  or  that  of 
lier  family,  to  avoid  publicity;  or  she  may  die  before  she  has 
established  her  rights  by  a  judicial  decree. 

The  difficulties  that  might  arise  from  adopting  a  rigid  rule 
that  the  wife's  domicil  shall  be  presumed  to  be  her  husband's  until 
she  overcomes  this  presumption  by  a  judicial  decree  seem  more 
serious  than  those  that  would  arise  from  trying  the  question  of 
domestic  relations  collaterally. 

We  should  hesitate  long  before  deciding  that  the  only  excep- 
tion to  the  rule  that  the  domicil  of  the  wife  follows  that  of  her 
husband  is  in  judicial  proceedings  whose  express  object  is  to 
show  that  the  relation  itself  ought  to  be  dissolved  or  modified. 


DOMICIL    OF    PARTICULAR    PERSONS.  95 

since  there  is  grave  danger  that  serious  injustice  might  arise.  See 
Lc  Sueur  V.  Le  Sueur,  i  Prob.  Div.  139-142;  Eversley,  Dom.  Rel. 
(1896)  p.  167. 

2  Bish.  Mar.  &  Div.  §§  114,  115,  upon  which  counsel  for  the 
town  rehes,  seems  to  recognize  tiiat  the  rule  should  not  always 
prevail  in  non-divorce  cases. 

Furtiiermore,  upon  principle,  it  is  difficult  to  see  why  a  wife 
who  is  completely  abandoned  by  her  husband,  even  in  consequence 
of  her  own  fault,  should  be  precluded  from  establishing  an  inde- 
pendent domicil.  If  the  husband,  justifiably  or  unjustifiably,  ren- 
ders it  impossible  for  her  to  dwell  with  him,  and  voluntarily  relin- 
quishes altogether  his  marital  control  and  protection,  so  that  the 
abandonment  is  a  completed  fact,  it  cannot  be  said,  in  strictness, 
that  her  dwelling  apart  from  him  is  her  continuous  fault.  Her 
original  fault  may  have  justified  the  abandonment,  but  his  renun- 
ciation of  his  former  oblig'ations  keeps  her  from  his  home,  and 
if  she  must  find  for  herself  another  home,  and  from  necessity  or 
convenience  goes  to  another  state,  it  is  difficult  to  see  why  she 
should  be  precluded  from  the  ordinary  rights  of  a  citizen  of  that 
state.  The  expressions  of  the  Supreme  Court  in  Athcrton  v. 
Athcrtou,  i8[  U.  S.  155,  21  Sup.  Ct.  544,  45  L.  Ed.  794,  which 
relate  to  a  wife  living  apart  without  sufficient  cause,  or  through 
an  unjustifiable  refusal  to  live  with  the  husband,  do  not  cover  a 
case  in  which  the  living  apart  is  caused  by  the  husband's  total 
abandonment  of  the  wife. 

In  the  present  case,  however,  we  are  relieved  from  a  con- 
sideration of  this  question  by  the  presumption  that  the  wife  was 
guilty  of  no  fault  which  justified  either  the  origmal  desertion  or 
its  long  continuance. 

We  are  of  opinion  especially  that  in  the  present  case,  and 
upon  the  present  assignments  of  error,  the  defendant  is  not 
entitled  to  make  the  objection  that  the  proper  evidence  of  the 
right  of  the  wife  to  an  independent  domicil  is  a  judicial  decree. 

No  objection  was  made  to  the  mtroduction  of  evidence  of 
facts  upon  which,  according  to  the  general  law  as  well  as  the  law 
of  Rhode  Island,  the  wife  became  entitled,  as  a  matter  of  legal 
right,  to  establish  an  independent  domicil. 

The  judgment  of  the  Ci—uit  Court  is  affirmed.® 


''Minors. — The  domicil  of  a  minor  follows  that  of  its  parents.  If  both 
parents  be  dead,  the  domicil  of  the  child  will  be  that  of  origin,  or,  if  that 
has  been  changed  by  the  parents,  that  of  its  last  surviving  parent.  The 
infant,    of   its   own    volition,   cannot    change   its    domicil.      I'mi    Matte    v. 


96  PRIVATE    INTERNATIONAL    LAW. 

Sankey,  148,  III.  5^6,  .?6  W.  E.  628.  Infants  having  a  domicil  in  one  state, 
who  after  the  death  of  both  their  parents  take  up  their  residence  at  the 
home  of  their  paternal  grandmother  and  next  of  kin  in  another  state, 
acquire  her  domicil.  La  Mar  v.  Micou,  114;  U.  S.  218;  In  re  Vance,  g2  Cal. 
/pj.  If  a  minor  is  emancipated,  he  may  choose  a  domicil  for  himself. 
Lozvell  V.  'Newport,  66  Me.  78;  Wheeler  v.  Burrozv,  18  Ind.  14. 

Adopted  Child. — The  domicil  of  a  minor  orphan  child,  who  has  been 
adopted  is  that  of  the  adoptive  parent  with  whom  it  resides.  IVoodtvard 
V.  IVoodivard,  87  Tenn.  644,  11  S.  iV.  892;  r/ashburn  v.  White,  140  Mass. 
56S;  Ross  V.  Ross,  I2g  Mass.  243,  37  Am.  Rep.  321. 

Ward. — A  guardian  appointed  in  the  state  of  the  domicil  of  the  ward 
(not  being  the  natural  guardian  or  a  testamentary  guardian)  cannot  remove 
the  ward  s  domicil  beyond  the  limits  of  the  state  in  which  the  guardian  is 
appointed  and  to  which  his  legal  authority  is  confined.  He  may,  how- 
ever, change  the  ward's  domicil  from  one  county  to  another  within  the 
same  state  and  under  the  same  law.  The  widowed  mother,  being  the 
natural  guardian,  may  change  the  domicil  of  her  child.  But  when  the 
widow,  by  marrying  again,  acquires  the  domicil  of  a  second  husband,  she 
does  not,  by  taking  her  children  by  the  first  husband  to  live  with  her 
there,  make  the  domicil  which  she  derives  from  her  second  husband  their 
domicil ;  and  they  retain  the  domicil  which  they  had,  before  her  second 
marriage,  acquired  from  her  or  from  their  father.  La  Mar  v.  Micou,  ii^ 
U.  S  452:  Louisville  v.  Sh.erley,  80  Ky.  7i- 

Clergymen. — The  domicil  of  a  clergyman  is  presumed  to  be  at  the  place 
where  he  has  charge  of  a  parish.  A  missionary  does  not  thereby  forfeit 
his  domicil,  nor  acquire  a  new  one  in  the  place  to  which  he  is  sent.  Allgood 
V.  Williams,  92  Ala.  551,  8  So.  Rep.  722. 

In  the  case  of  Hayes  v.  Hayes,  74  III  312,  it  was  decided  that  a  clergy- 
man who  was  domiciled  in  Illinois,  and  who  left  the  state  to  take  charge  of 
a  congregation  in  Iowa,  and  had  lived  there  for  two  years,  acquired  prop- 
erty there,  and  voted  there,  was  still  domiciled  in  Illinois. 

Students. — A  student  does  not  acquire  a  residence  at  the  seat  of  learning 
unless  he  goes  there  with  an  intei.tion  of  always  remaining.  Vanderpoel  v.. 
O'Hanlon,  ^3  loiva  246:  36  Am.  Rep.  216:  Opinion  of  the  Judges,  5  Met. 
587:  Fry's  Election  Case,  71  Pa.  St.  302.  A  residence  at  a  college  or  other 
seminary  for  the  purpose  of  instruction,  would  not  confer  a  right  to  vote 
in  the  town  where  such  an  institution  exists,  if  the  student  had  not  severed 
himself  from  his  father's  control,  but  resorted  to  his  house  as  a  home,  and 
continued  under  his  direction  and  management.  Dale  v.  Irzvin.  78  III.  170: 
Sanders  v.  Gctehcll,  76  Me.  1^18.  The  fact  that  one  is  a  student  in  a  univer- 
sity does  not  of  itself  entitle  him  to  vote  where  the  university  is  situated,, 
nor  does  it  prevent  his  voting  tlT^-".  It  all  depends  upon  the  kind  of  resi- 
dence required  by  the  state  law.  Putnam  ?'.  Johnson.  10  Mass.  488;  Berry 
V.  Wilcox,  44  Ncbr.  82  (1893):  Stewart  v.  Kyser,  103  Cal.  450. 

Officers. — Officers  may  or  may  not  acquire  a  domicil  at  the  place  of 
their  duties.  It  will  depend  upon  the  intent.  However,  an  officer  who  has 
not  changed  his  domicil  may  lose  his  vote  by  not  complying  with  the  regis- 
tration laws  of  his  domicil.  Sterling  v.  Horner,  74  Md.  573  (1891);  Ven- 
able  V.  Paulding.  19  Minn.  488:  Hannon  v.  Grizzard.  89  N.  C.  115. 

Soldiers. — .\  soldier  retains  the  domicil  which  he  had  on  entering  the 
service.  Brcwr  v.  Linnaeus.  36  Me.  428.  Such  persons  may  change  their 
domicil  in  the  ordinary  way.  Mooar  7'.  Harvey.  128  Mass.  219:  Remey  v. 
Board,  80  loiva  470:  Wood  v.  Fitzgerald.  3  Oreg.  568:  Steti.'art  v.  Kyser, 
105  Cal.  45Q. 

Ser\'ants. — A  servant  may,  or  may  not,  take  the  domicil  of  the  master. 
It  depends  upon  the  combination  of  fact  and  intention.  Moreland  1:  David- 
son, Jl  Pa.  St.  371;  Ccrro  Gcrdo  Co.  v.  Hancock  Co.,  38  lozva  114.     An 


DOMICIL    OF    PARTICULAR    PERSONS,  97 

apprentice,  or  minor  bound  out  to  service,  takes  the  domicil  of  the  master, 
'    Maddox  v.  State,  32  hid.  14;  Oldtoun  v.  falmouih,  40  Me.  106. 

A  man  laboring  in  one  town  with  no  other  intention  as  to  residence 
except  to  have  a  home  wherever  he  worl<s,  may  well  be  deemed  to  live  there 
with  the  purpose  of  remaining  for  an  indefinite  period  of  time,  and  thus 
to  have  there  all  the  home  he  has  anywhere,  as  much  of  a  domicil  as  such 
a  wanderer  can  have,     ll'ilbrahain  v.  Litdloic,  (.)<)  Mass.  ^Sj. 

Prisoners.— An  imprisonment  for  years  in  the  state  prison,  pursuant 
to  a  legal  sentence,  does  not,  of  itself,  change  domicil.  Tupsham  v.  Lezus- 
toit.  74  Me.  236  (1SS2).  Imprisonment  in  a  state  prison  in  this  country 
does  not  work  civil  death.  The  strict  civil  death,  at. common  law,  seems  to 
have  been  confined  to  the  cases  of  persons  professed,  or  abjured,  or  ban- 
ished the  realm  as  in  cases  of  monks,  and  cases  of  crimes  attended  with 
forfeiture  of  the  estate  and  corruption  of  blood.  By  statute  in  some 
states  a  life  sentence  operates  as  the  natural  death  of  a  person,  especially 
as  to  marripge  or  the  settlement  of  his  estate.  Baltimore  v.  Chester  5? 
Vt.  315  {188 1). 

Fugitives, — One  who  leaves  his  home  through  fear  of  crimmai  prose- 
cution does  not  lose  his  domicil,  but,  if  he  goes  to  a  new  place  with  the 
intention  to  remain  permanently,  he  acquires  a  domicil  there.  Cobb  v.  Rire, 
130  Mass.  231;  Ayers  v.  Weeks,  65  N.  H.  248.  t8  Ail.  1108:  Young  v. 
Pollak,  83  Ala.  439.  5  So.  Rep.  279;  Unnis  v.  Smith,  14  Hov.'.  400;  Chitty  v. 
Chitty,  118  N.  C.  647.  2.f  S.  E.  317,  32  L.  R.  A.  394. 

Insane  Persons, — Persons  totally  insane  cannot  change  domicil.  Pitts- 
Held  V.  Detroit,  33  Me.  442.  But  a  person  under  guardianship  as  a  weak- 
minded  person  may  have  sufficient  mental  capacity  to  choose  a  domicil  for 
himself.  Talbot  v.  Chamberlain,  i jg  Mass.  37  (1889).  A  person  insane 
from  birth,  living  with  his  parents  till  he  reaches  majority,  retains  the 
father's  domicil.  Monroe  v.  Jackson,  33  Me.  33:  Upton  v.  Northbridge. 
13  Mass.  237:  Holyoke  v.  Haskius,  3  Pick.  20;  Jackson  v.  Polk,  19  Ohio  St. 
28;  Anderson  v.  Anderson,  42  Vt.  330. 

Paupers, — A  pauper  remaining  at  the  county  poor  house  does  not 
acquire  a  domicil  in  the  township  in  which  the  poor  house  is  located.  Clark 
V.  Robinson,  88  III.  498.  Such  pauper,  however,  is  not  under  such  legal 
restraint  as  to  prevent  his  acquiring  a  domicil  there.  Sturgeon  v.  Korte, 
34  Ohio  St.  323.  Such  persons  may  acquire  a  domicil  at  a  veterans'  home, 
infirmary,  if  it  is  their  intention  to  do  so  Stezvart  z\  Kyscr,  103  Cat.  459; 
Pliillips  V.  Boston,  183  Mass.  344  (1903). 

Corporations. — As  regards  domicil,  a  corporation  does  not  dififer  from 
a  natural  person.  If  any  person,  natural  or  artificial,  as  a  result  of  choice 
or  on  technical  grounds  of  birth  or  creation,  has  a  domicil  in  one  place, 
it  cannot  have  one  elsewhere,  because  what  the  law  means  by  domicil  is 
the  one  technically  pre-eminent  headquarters,  which  as  a  result  either  of 
fact  or  of  fiction,  every  person  is  compelled  to  have  in  order  that  by  aid  of 
it  certain  rights  and  duties  which  have  been  attached  to  it  by  the  law  may 
be  determined.  It  is  settled  that  a  corporation  has  its  domicil  in  the  juris- 
diction of  the  state  which  created  it,  and  as  a  consequence  that  it  has  not 
a  domicil  anywhere  else.  Bcrgner  v.  Dreyfus,  172  Mass.  134,  70  Am.  St. 
Rep.  231 :  Boston  Investment  Co.  v.  Boston,  138  Mass.  461:  Shazc  v.  Ouiucy 
Mining  Co.,  143  U.  S.  444:  In  re  Hohorst.  130  U.  S.  633.  If  a  corporation 
is  chartered  in  several  states,  it  is  domiciled  in  each  state.  Memphis  Ry. 
Co.  V.  Alabama,  107  U.  S.  3S1:  Railroad  v.  Barnhill,  9/  Tenn.  393.  19  S.  U  . 
Rep.  21;  St.  Louis  Ry.  Co.  v.  James.  j6i  V  S.  543;  Ala.  and  Ga.  Manf.  Co. 
V.  River  dale.  127  fed.  Rep.  497  {1904). 
7 


98  PRIVATE    INTERNATIONAL    LAW. 

DOMICIL  AND  TAXATION. 

FROTHINGHAM  v.  SHAW,  1899. 

[175  Mass.  59,  78  Am.  St.  Rep.  475-] 

Petition,  to  the  Probate  Court,  by  the  executor  of  the  will 
of  Joseph  Frothingham,  for  instructions  as  to  the  payment  of  a 
collateral  inheritance  tax  on  the  residuary  legacies.  The  case  was 
heard  on  agreed  facts,  and  came  here  by  successive  appeals  from 
decrees  of  the  Probate  Court  and  of  a  single  justice  of  this  court 
finding  that  the  tax  was  payable,  and  directing  the  executor  to  pay 
the  same.     The  facts  appear  in  the  opinion. 

Morton,  J.  At  the  time  of  his  death  the  testator  was  domi- 
ciled at  Salem,  in  this  Commonwealth,  and  his  estate,  except  cer- 
tain real  estate  situated  here  and  appraised  at  $2,100,  and  cash 
in  a  savings  bank  in  Salem  amounting  to  $993,  was,  and  for  many 
years  had  been,  in  the  hands  of  his  agents  in  New  York,  and  con- 
sisted of  bonds  and  stock  of  foreign  corporations,  a  certificate 
of  indebtedness  of  a  foreign  corporation,  bonds  secured  by  mort- 
gage on  real  estate  in  New  Hampshire,  the  makers  living  in  New 
York,  and  of  cash  on  deposit  with  a  savings  bank  and  with  indi- 
viduals in  Brooklyn ; — the  total  being  upwards  of  $40,000. 

There  has  been  no  administration  in  New  York,  and  the 
petitioners  have  taken  possession  of  all  the  property  except  the  real 
estate,  and  have  paid  all  of  the  debts  and  legacies  except  the 
residuary  legacies.  None  of  the  legacies  are  entitled  to  exemp- 
tion if  otherwise  liable  to  the  tax. 

The  petitioners  contend  that  the  stocks,  bonds,  etc.,  were  not 
"property  within  the  jurisdiction  of  the  Commonwealth,"  within 
the  meaning  of  St.  1S91,  c.  425,  §  i,  and  that,  if  they  were,  the 
succession  took  place  by  virtue  of  the  law  of  New  York  and  not 
of  this  state. 

It  is  clear  that  if  the  question  of  the  liabilitv  of  the  testator  to 
be  taxed  in  Salem  for  the  property  had  arisen  during  his  lifetime 
he  would  have  been  taxable  for  it  under  Pub.  St.  c.  11,  §§  4,  20, 
notwithstanding  the  certificates,  etc.,  were  in  New  York;  Kirt- 
land  V.  Hotchkiss,  100  U.  S.  491  ;  State  Tax  on  Foreign-Held 
Bonds,  15  Wall.  300;  Cooley.  Taxation.  C2d  ed.)  371;  and  th^ 
liability  would' have  extended  to  and  included  the  bonds  secured 
by  mortgage.  Kirtland  v.  Hotchkiss  and  State  Tax  on  Foreign- 
Held  Bonds,   tibi  supra.     Hale   v.   County   Commissioners,    137 


DOMICIL    AND    TAXATION.  99 

Mass.  III.  It  is  true  that  the  PubHc  Statutes  provide  that  per- 
sonal property  wherever  situated,  whether  within  or  without  the 
Commonwealth,  shall  be  taxed  to  the  owner  in  the  place  where 
he  is  an  inhabitant.  But  it  is  obvious  that  the  Legislature  cannot 
authorize  the  taxation  of  property  over  which  it  has  no  control, 
and  the  principle  underlying  the  provision  is  that  personal  prop- 
erty follows  the  person  of  the  owner,  and  properly  may  be 
regarded,  therefore,  for  the  purpose  of  taxation,  as  having  a 
situs  at  his  domicil,  and  as  being  taxable  there.  After  the  testa- 
tor's death  the  property  would  have  been  taxable  to  his  executors 
for  three  years  or  until  distributed  and  paid  over  to  those  entitled 
to  it,  and  notice  thereof  to  the  assessors ;  showing  that  the  fiction, 
if  it  is  one,  is  continued  for  the  purpose  of  taxation  after  the 
owner's  death.  Pub.  St.  c.  ii,  §  20.  cl.  7.  Hardy  v.  Yannonth, 
6  Allen,  2"/"/.  in  the  present  case  the  tax  is  not  upon  property 
as  such,  but  upon  the  privilege  of  disposing  of  it  by  will,  and  of 
succeeding  to  it  on  the  death  of  the  testator  or  intestate,  and  it 
"has  some  of  the  characteristics  of  a  duty  on  the  administration 
of  the  estates  of  deceased  persons."  Mmot  v.  IVinthrop,  162 
Mass.  113,  124.  Callahan  v.  Woodhridge,  171  Mass.  595.  Greves 
V.  Shall',  173  Mass.  205.  Moody  v.  Shaw,  173  Mass.  375.  In 
arriving  at  the  amount  of  the  tax  the  property  within  the  juris- 
diction of  the  Commonwealth  is  considered,  and  we  see  no  reason 
for  supposing  that  the  Legislature  intended  to  depart  from  the 
principle  heretofore  adopted,  which  regards  personal  property 
for  the  purposes  of  taxation  as  having  a  situs  at  the  domicil  of  its 
owner.  This  is  the  general  rule,  Cooley  on  Taxation,  (2d  ed.) 
372 ;  and  though  it  may  and  does  lead  to  double  taxation,  that 
has  not  been  accounted  a  sufficient  objection  to  taxing  personal 
property  to  the  owner  during  his  life  at  the  place  of  his  domicil, 
and  we  do  not  see  that  it  is  a  sufficient  objection  to  the  imposition 
of  succession  taxes  or  administration  duties  under  like  circum- 
stances after  his  death. 

In  regard  to  the  mortgage  bonds  it  is  to  be  noted,  in  addition 
to  what  has  been  said,  that  this  case  differs  from  Callahan  v. 
Woodbridge.  In  that  case  the  testator's  domicil  was  in  Xew 
York,  and  it  does  nt^t  appear  from  the  opinion  that  the  note  anil 
mortgage  deed  were  in  this  State.  In  this  case  the  domicil  was 
in  this  Commonwealth,  and  we  think  that  for  the  purpose  of  taxa- 
tion the  mortgage  debt  may  be  regarded  as  having  a  situs  here. 
This  is  the  view  taken  in  Hanson's  Death  Duties.  (4th  ed.)  239. 
240,   which    is    cited    apparently    with    approval    by    Mr.    Dicey, 


100  PRIVATE    INTERNATIONAL    LAW. 

though  he  calls  attention  to  cases  which  may  tend  in  another 
direction.     See  Dicey,  Conll.  of  Laws,  319,  note  i. 

It  seems  to  us,  therefore,  that  for  the  purposes  of  the  tax  in 
question  the  property  in  the  hands  of  the  executor  must  be 
regarded  as  having  been  within  the  jurisdiction  of  this  Common- 
wealth at  the  time  of  the  testator's  death.  See  In  re  Simft,  137 
N.   Y.  77:   Miller's  estate,    182   Penn.    St.    157. 

The  petitioners  further  contend  that  the  succession  took 
place  by  virtue  of  the  law  of  New  York.  But  it  is  settled 
that  the  succession  to  movable  property  is  governed  by  the 
law  of  the  owner's  domicil  at  the  time  of  his  death.  This,  it 
has  been  often  said,  is  the  universal  rule,  and  applies  to  mov- 
ables wherever  situated.  Stevens  v.  Gaylord,  11  Mass.  256, 
Dazves  v.  Head,  3  Pick.  128,  144,  145.  Fay  v.  Haven,  3  Met.  109. 
Wilkins  V.  Ellett,  9  Wall.  740;  S.  C.  108  U.  S.  256.  Freke  v. 
Carbcry,  L.  R.  16  Eq.  461.  Attorney  General  v.  Campbell,  L.  R. 
5  H.  L.  524.  Duncan  v.  Laivson,  41  Ch.  D.  394.  Sill  v.  Wors- 
zvick,  I  H.  Bl.  665,  690.  Dicey,  Confl.  of  Laws,  683.  Story, 
Confl.  of  Laws,  (7th  ed.)  §§  380,  481. 

If  there  are  movables  in  a  foreign  country,  the  law  of  the 
domicil  is  given  an  extraterritorial  effect  by  the  courts  of  that 
country,  and  in  a  just  and  proper  sense  the  succession  is  said  to 
take  place  by  force  of  and  to  be  governed  by  the  law  of  the 
domicil.  Accordingly,  it  has  been  held  that  legacy  and  succession 
duties  as  such  were  payable  at  the  place  of  domicil  in  respect  to 
movable  property  wherever  situated,  because  in  such  cases  the 
succession  or  legacy  took  effect  by  virtue  of  the  law  of  domicil. 
Wallace  v.  Attorney  General,  L.  R.  i.  Ch.  i.  Dicey,  Confl.  of 
Laws,  785.    Hanson's  Death  Duties,  423,  526. 

With  probate  or  estate  or  administration  duties  as  such  it  is 
different.  They  are  levied  in  respect  of  the  control  which  every 
government  has  over  the  property  actually  situated  within  its 
jurisdiction  irrespective  of  the  place  of  domicil.  Laidlay  v.  Lord 
Advocate,  15  App.  Cas.  468,  483.  Hanson's  Death  Duties,  (4th 
ed.)  2,  63. 

Of  course  any  State  or  country  may  impose  a  tax  and  give  it 
such  name  or  no  name  as  it  chooses,  which  shall  embrace,  if  so 
intended,  the  various  grounds  upon  which  taxes  are  or  may  be 
levied  in  respect  of  the  devolution  of  estates  of  deceased  persons, 
and  which  shall  be  levial)le  according  as  the  facts  in  each  par- 
ticular case  warrant.  In  England,  for  instance,  the  estate  duty, 
as  it  is  termed,  under  the  Finance  Act  of  1894  (57  &  58  Vict.  c. 


DOMICIL    AND    TAXATION. 


101 


30)  has  largely  superseded  the  probate  duty,  and  under  some 
circumstances  takes  the  place  of  the  legacy  and  succession  duty 
also,    rianson's  Death  Duties,  (4th  ed.)  62,  63,  81. 

But  whatever  the  form  of  tlie  tax,  the  succession  takes  place 
and  is  governed  by  the  law  of  the  domicil ;  and,  if  the  actual 
situs  is  in  a  foreign  country,  the  courts  of  that  country  cannot 
annul  the  succession  established  by  the  law  of  the  domicil.    Dain- 
incrt.  V.  Osborn,   141   N.  Y.  564.     In  further  illustration  of  the 
extent,  to  which  the  law  of  the  domicil  operates,  it  is  to  be  noted 
that  the  domicd  is  regarded  as  the  place  of  principal  administrat- 
tion,  and  any  other  administration   is   ancillary  to  that   granted 
there.     Payment  by  a  foreign  debtor  to  the  domiciliary  adminis- 
trator will  be  a  bar  to  a  suit  brought  by  an  ancillary  adminis- 
trator subsequently  appointed.     JVilkins  v.  Ellctt  and  Stevens  v. 
Gaylord,  ubi  supra.    Hufchim  v.  State  Bank,  12  Met.  421.    Mar- 
tin V.  Gage,  147  Mass.  204.     And  the  domiciliary  administrator 
has  sufficient  standing  in  the  courts  of  another  State  to  appeal 
from  a  decree  appointing  an  ancillary  administrator.     Smith  v. 
Slicrnian,  4  Cush.  408.     Moreover,  it  is  to  be  observed,  if  that  is 
material,  that  there  has  been  no  administration   in   New   York, 
that  the  executor  was  appointed  here,  and  has  taken  possession 
of  the  property  by  vu'tue  of   such   appointment   and  must   dis- 
tribute it  and  account  for  it  according  to  the  decrees  of  the  courts 
of  this  Commonwealth.     To  say,  therefore,  that  the  succession 
has  taken  place  by  virtue  of  the  law  of  New  York  would  be  no 
less  a  fiction  than  the  petitioners  insist  that  the  maxim  mohilia 
sequuntnr  personam  is  when  applied  to  matters  of  taxation. 

The  petitioners  contend  that  in  Callahan  v.  IVoodbridge  it 
was  held  that  the  succession  to  the  personal  property  in  this  State 
took  place  by  virtue  of  the  law  of  this  State,  although  the  testator 
was  domiciled  in  New  York.  We  do  not  so  understand  that  case. 
That  case  and  Greves  v.  Shazv  and  Moody  v.  Shaiv,  ubi  supra, 
rest  on  the  right  of  a  State  to  impose  a  tax  or  duty  in  respect  to 
the  passing  on  the  death  of  a  non-resident  of  personal  property 
belonging  to  him  and  situated  within  its  jurisdiction.  We  think 
that  the  decree  should  be  affirmed." 

5*0  ordered. 


'TIk-  old  rule  by  which  personal  property  was  res:arded  as  subject  to  the 
law  of  the  owner's  domicil.  grew  up  in  the  Middle  Ages,  when  movable 
property  consisted  chiefly  of  gold  and  jewels,  which  could  be  easily  carried 
by  the  owner  from  place  to  place,  or  secreted  in  spots  known  only  to  him- 
self. In  modern  times,  since  the  great  increase  in  amount  and  variety  of 
personal  property,  not  immediately  connected  with  the  person  of  the  owner, 


102  PRIVATE    INTERNATIONAL    LAW. 

DOMICIL,  AND  ACTS  IN  UNCIVILIZED  COUNTRIES. 

DICEY  CONFLICT  OF  LAWS,   APPENDIX,    NOTE    I.* 

The  Rules  in  this  Digest  apply  only  to  rights  acquired  under 
the  law  of  a  civilized  country.  What,  however,  is  the  law,  if  any, 
which  in  the  opinion  of  English  Courts  governs  transactions  tak- 
ing place  in  an  uncivilized  country,  e.  g.,  in  the  Soudan,  or  in  some 
part  of  the  world  not  under  the  sovereignty  of  any  ruler  recog- 
nized by  European  law  ? 

The  question  is  one  which  may  at  times  come  before  an  Eng- 
lish Court :  it  is  also  one  to  which,  in  the  absence  of  decisions, 
nothing  like  a  final  answer  can  be  given ;  all  that  can  be  done  is  to 
note  a  few  points,  as  to  the  matter  before  us,  on  which  it  is  pos- 
sible to  conjecture,  at  any  rate,  what  would  be  the  view  taken  by 
English  Courts. 

We  m.ay  assume  that  the  legal  effect  of  a  transaction  taking 
place,  e.  g.,  a  contract  made,  in  an  uncivilized  country  could  not 
come  before  an  English  Court  unless  one  of  the  parties  at  least 
were  the  subject  of  some  civilized  state. 

(i)  As  to  dornicil. — An  Englishman — and  probably  the  citi- 
zen of  any  civilized  country — does  not,  it  would  seem,  by  fixmg  his 
permanent  residence,  or  settling  in  an  uncivilized  country,  acquire _, 
for  legal  purposes,  a  domicil  in  such  country.  A  domiciled  Eng- 
lishman who  settles  in  China,  and  a  fortiori  who  settles  in  a 
strictly  barbarous  country,  retains  his  English  domicil.  A,  an 
Englishman,  was  settled  in  Shanghai.  "In  these  circumstances  it 
"was  admitted  by  the  petitioner's  counsel  [in  a  case  as  to  liability 
"to  legacy  duty]  that  they  could  not  contend  that  the  testator's 
"domicil  was  Chinese.     This  admission  was  rightly  made.     The 


that  rule  has  yielded  more  and  more  to  the  lex  situs,  the  law  of  the  place 
where  the  property  is  kept  and  used. 

For  purposes  of  taxation,  personal  property  may  be  separated  from 
its  owner,  and  he  may  be  taxed,  on  its  account,  at  the  place  where  it  is, 
although  not  the  place  of  his  domicil,  and  even  if  he  is  not  a  citizen  or  a 
resident  of  the  state  which  imposes  the  tax.  Pullman  Car  Co.  v.  Pa.,  141 
U.  S.  18,  and  case  cited;  Buck  v.  Miller,  147  Ind.  586,  45  N.  E.  647,  62  Am. 

St.  Rep.  452. 

SenMcKeen  v.  County  of  Northampton.  40  Pa.  St.  579,  88  Am.  Dec. 
515;  Nerv  Orleans  v.  Stent  pel,  175  U.  S.  309;  Hunt  v.  Perry  165  Mas^.  287, 
43  N.  E.  103;  129  Pa.  St.  338,  18  Atl.  132;  In  re  Branson,  150  N.  Y.  i;  Dicey 
CoiiHict  of  Lazvs,  P.  781. 

*This  "note"  is  inserted  by  permission  of  the  American  publishers  of 
**Dicey  on  the  Conflict  of  Laws." 


DOMICIL,    AND    ACTS    IN    UNCIVILIZED    COUNTRIES.  103 

"difference  between  the  religion,  laws,  manners,  and  customs  of 
"the  Chinese  and  of  Englishmen  is  so  great  as  to  raise  every 
■'presumption  against  such  a  domicil,^and  brings  the  case  within 
"the  principles  laid  down  by  Lord  Stowcll  in  his  celebrated  judg- 
"ment  in  The  Indian  Chief  [1801,  3  Rob.  Ad.  Cas.  29].  and  by 
"Dr.  Lushington  in  Maltass  v  Malfass"  \  1844,  i  Rob.  Ecc.  Cas. 
67.  80,  8t].  (In  re  Toofal's  Trusts,  1883,  23  Ch.  D.  532,  534, 
judgment  of  CJiiffy,  J.  Semble,  however,  that  the  cases  do  not 
show  that  an  Englishman  might  not  for  legal  purposes  acquire  a 
domicil  in  such  a  country  as  China.  All  they  actually  establish 
is  the  strength  of  the  presumption  against  his  intending  to  acquire 
a  domicil  in  China,  or  rath.er  to  subject  himself  to  Chinese  law.) 
The  principle  laid  down  or  suggested  in  these  words  by  Mr. 
Justice  Chitty — namely,  that  settlement  in  an  uncivilized  country 
does  not  change  the  domicil  of  the  citizen  of  a  civilized  country,  or 
at  any  rate  of  a  domiciled  Englishman — goes  (if  it  can  be  main- 
tained) some  way  towards  solving  one  or  two  difficult  questions, 
e.  g.,  What  is  the  law  governing  the  validity  of  a  will  made  in  an 
uncivilized  country  by  an  Englishman  domiciled  in  in  England? 

(2)  As  to  marriage. — A  marriage  made  in  a  strictly  bar- 
barous country  between  British  subjects,  or  between  a  British 
subject  and  a  citizen  of  a  civilized  country,  e.  g.,  an  Italian,  and 
it  would  seem  even  between  a  British  subject  and  a  native  of  such 
uncivilized  country,  will,  it  is  submitted,  be  held  valid  as  regards 
forms,  if  made  in  accordance  with  the  requirements  of  the  Eng- 
lish common  law ;  and  it  is  extremely  probable  that,  with  regard 
to  such  a  marriage,  the  common  law  might  now  be  interpreted  as 
allowing  the  celebration  of  a  marriage  per  verba  de  prccsenti  with- 
out the  presence  of  a  minister  in  orders.  A  local  form,  also,  if 
such  there  be,  would  seem  to  be  sufficient,  at  any  rate  where  one 
of  the  parties  is  a  native.  It  is,  however,  essential  that  the  inten- 
tion of  the  parties  should  be  an  intention  to  contract  a  "marriage" 
in  the  sense  in  which  that  term  is  known  in  Christian  countries, 
i.  e.,  the  linion  of  one  man  to  one  woman  for  life  to  the  exclusion 
of  all  others.  Capacity  to  marry  would  apparently  depend  upon 
the  law  of  the  domicil  of  the  parties,  or  oerhaps  more  strictly  of 
the  husband. 

(3)  As  to  contract. — Capacity  to  contract  must,  it  would 
seem,  depend  upon  the  law  of  the  domicil  of  the  parties  to  the 
agreement.  If  either  of  the  parties  were  under  an  incapacity  by 
the  law  of  his  domicil  to  enter  into  a  contract,  an  agreement  made 
by  him  in  an  uncivilised  country  would  probably  not  be  enforceable 


104  PRIVATE    INTERNATIONAL    LAW. 

against  him  in  England.  This  we  may  be  pretty  certain  would  be 
the  case  were  the  party  under  an  incapacity  an  English  infant 
domiciled  in  England. 

The  formalities  of  a  contract  probably,  and  its  effect  almost 
certainly,  would,  under  the  circumstances  supposed,  be  governed 
by  the  proper  law  of  the  contract,  i.  e.,  by  the  law  contemplated  by 
the  parties.  Suppose  X  and  A  enter  into  a  contract  in  the  Soudan. 
If  the  contract  is  to  be  performed  in  England,  the  incidents  would 
be  governed  by  English  law  ;  whilst,  if  it  is  to  be  performed  in 
Germany,  its  incidents  would  be  governed  by  German  law. 

(4)  As  to  alienation  of  movables. — If  the  movables  are  at  the 
time  of  the  alienation  situate  in  the  barbarous  country,  probably 
English  Courts  might  hold  that  the  alienation  must,  in  order  to  be 
valid,  be  one  which,  if  made  in  England,  would  be  valid  according 
to  the  English  common  law.  There  is  little  doubt  that  if,  though 
the  alienation  takes  place  in  an  uncivilised  country,  the  movables 
alienated  are  situated  in  a  civilised  country,  the  validity  of  the 
alienation  would  depend  on  the  law  of  that  country  {lex  situs). 

(5)  Torts. — When  an  act  which  damages  A  or  his  property  is 
done  by  X  in  a  barbarous  country,  the  character  of  the  act  cannot 
depend  on  the  law  of  the  country  where  it  is  done.  If  both  X  and 
A  are  domiciled  in  England,  the  act  is  probably  wrongful  and 
actionable  in  England,  if  it  would  have  been  tortious  if  done  in 
England.  If  the  two  parties  are  domiciled,  the  one  in  England 
and  the  other,  e.  g.,  in  Germany,  then  the  act  is  probably  action- 
able in  England,  if  it  be  one  which  is  wrongful  both  according  to 
the  law  of  England  and  according  to  the  law  of  Germany.  But 
we  can  here  be  guided  by  nothing  but  analogy,  and  all  we  can  do 
is  to  consider  how  far  the  rules  which  govern  the  possibility  of 
bringing  an  action  in  England  for  a  tort  committed  in  a  foreign 
and  civilised  country  can  by  analogy  be  made  applicable  to  an 
action  for  a  tort  committed  in  an  uncivilised  country.  An  action 
cannot  be  maintained  in  England  for  a  trespass  to  land  in  an  un- 
civilised country. 

(6)  Procedure. — An  action  in  England  in  respect  of  any 
transaction  taking  place  in  an  uncivilised  country  is  clearly,  as 
regards  all  matters  of  procedure,  governed  by  English  law. 

On  most  of  the  points,  however,  considered  in  this  Note,  and 
many  others  which  might  suggest  themselves,  we  must  trust 
wholly  to  conjecture,  and  must  admit  that  what  is  the  law,  if  any, 
governing  transactions  taking  place  in  an  uncivilised  country,  is 
in  many  instances  a  matter  of  absolute  uncertainty.    If,  for  exam- 


DOMICIL,    AND    ACTS    IN    UNClVlLl^iED    C(JUNTK1ES. 


105 


pie,  X,  an  Englishman  domiciled  in  England,  whilst  in  an  uncivi- 
lised country  promises  A,  a  Scotchman  domiciled  in  Scotland, 
out  of  gratitude  for  some  past  service,  to  pay  A  iio  on  their  return 
home,  is  the  promise  governed  by  English  law,  and  therefore  in- 
valid for  want  of  a  consideration,  or  by  Scotch  law,  under  which, 
apparently,  it  may  be  valid?  How,  again,  if  the  position  of  the 
parties  had  been  reversed,  and  the  promise  had  been  made  by  A, 
the  Scotchman  domiciled  in  Scotland,  to  A',  the  Englishman  domi- 
ciled in  England  ?  To  these  and  similar  inquiries  no  certain  reply 
is,  it  is  conceived,  possible. 


CHAPTER  V. 

NATIONALITY. 

UNITED  STATES  v.  WONG  KIM  ARK,  1898. 

[169  U.  S.  649,  42  Sup.  Ct.  Rep.  890.] 

1.  United  States  Citizens  by  Birth.  5-  Methods  of  Naturalization. 

2.  Citizens  by  Naturalization.  6.  Conditions    of   Naturalization. 

3.  Who  may  Naturalize.  7-  Alien  friends  and  alien  enemies. 

4.  Who  may  be  Naturalized.  8.  Rights  of  Aliens. 

In  this  case,  the  question  presented  by  the  record  is  whether 
a  child  born  in  the  United  States,  of  parents  of  Chinese  descent, 
who,  at  the  time  of  his  birth,  are  subjects  of  the  Emperor  of 
China,  but  have  a  permanent  domicil  and  residence  in  the  United 
States,  and  are  there  carrying  on  business,  and  are  not  employed 
ni  any  diplomatic  or  official  capacity  under  the  Emperor  of  China, 
becomes  at  the  time  of  his  birth  a  citizen  of  the  United  States,  by 
virtue  of  the  first  clause  of  the  Fourteenth  Amendment  of  the 
Constitution,  "All  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  state  wherein  they  reside." 

Mr.  Justice  Gray,  in  delivering  the  opinion  of  the  court,  said: 
In  construing  any  act  of  legislation,  whether  a  statute  enacted  by 
the  legislature,  or  a  constitution  established  by  the  people  as  the 
supreme  law  of  the  land,  regard  is  to  be  had,  not  only  to  ah  parts 
of  the  act  itself,  and  of  any  former  act  of  the  same  law-making- 
power,  of  which  the  act  in  question  is  an  amendment;  but  also  to 
the  condition,  and  to  the  history,  of  the  law  as  previously  existing, 
and  in  the  light  of  which  the  new  act  must  be  read  and  interpreted. 

The  Fourteenth  Article  of  Amendment  of  the  Constitution 
declares  that  "all  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  state  wherein  they  reside."  The  Constitution 
nowhere  defines  the  meaning  of  these  words,  either  by  way  of 
inclusion  or  of  exclusion,  except  in  so  far  as  this  is  done  by  the 
affirmative  declaration  that  "all  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof,  are  citizens 
of  the  United  States."     In  this,  as  in  other  respects,  it  must  be 


NATIONALITY.  107 

interpreted  in  the  litjlit  of  the  common  law,  the  principles  and  his- 
tory of  which  were  familiarly  known  to  the  framers  of  the  Con- 
stitution. Minor  t'.  Happcrsctt,  21  Wall,  162;  Ex  parte  Wilson, 
114  U.  S.  417;  Boyd  I'.  United  States,  116  U.  S.  616;  Smith  v. 
Alabama,  124  l,^.  S.  465.  The  lanj^uage  of  the  Constitution,  as 
has  been  well  said,  could  not  be  understood  without  reference  to 
the  common  law.  i  Kent  Com.  336;  Moore  v.  United  States,  91 
U.  S.  270.  The  interpretation  of  the  Constitution  of  the  United 
States  is  necessarily  influenced  by  the  fact  that  its  provisions  are 
framed  in  the  language  of  the  English  common  law,  and  are  to  be 
read  in  the  light  of  its  history.    Smith  v.  Alabama,  124  U.  S.  465. 

The  fundamental  principle  of  the  common  law  with  regard  to 
English  nationality  was  birth  within  the  allegiance,  also  called 
"ligealty,"  "obedience,"  "faith"  or  "power."  of  the  King.  The 
principle  embraced  all  persons  born  within  the  King's  allegiance 
and  subject  to  his  protection.  Such  allegiance  and  protection  were 
mutual  and  were  not  restricted  to  natural-born  subjects  and  natu- 
ralized subjects,  or  to  tliose  who  had  taken  an  oath  of  allegiance ; 
but  were  predicable  of  aliens  in  amity,  so  long  as  they  were  within 
the  kingdom.  Children,  born  in  England,  of  such  aliens,  were 
therefore  natural-born  subjects.  But  the  children,  born  within  the 
realm,  of  foreign  ambassadors,  or  the  children  of  alien  enemies, 
born  during  and  within  their  hostile  occupation  of  part  of  the 
King's  dominions,  were  not  natural-born  subjects,  because-  not 
born  within  the  allegiance,  the  obedience,  or  the  power,  or,  a& 
would  be  said  at  this  day,  within  the  jurisdiction  of  the  King. 
Calvin's  Case,  7  Rep.  i  ;  Doe  v.  Jones,  4  T.  R.  300;  Dicey  Conflict 
of  Laws,  pp.  173-177.  741- 

Mr.  Dicey,  in  his  careful  and  thoughtful  Digest  of  the  Law  of 
England  with  reference  to  the  Conflict  of  Laws,  published  in  1896, 
states  the  following  propositions,  his  principal  rules  being  printed 
below  in  italics :  'British  subject  means  a)iy  person  li'ho  o^ces 
permanent  allei^ianee  to  the  cro^cn.  'Permanent'  allegiance  is  used 
to  distinguish  the  allegiance  of  a  British  subject  from  the  allegi- 
ance of  an  alien  who,  because  he  is  within  the  British  dominions, 
owes  'temporary"  allegiance  to  the  Crown.  'Natural  born  British 
subject'  means  a  British  subject  who  has  become  a  British  subject 
at  the  moment  of  his  birth."  "Subject  to  the  exceptions  herein- 
after mentioned,  any  person  xvhn  {whatever  the  nationality  of  his 
parents)  is  born  zcithin  the  British  dominions  is  a  natural  born 
British  subject.  This  rule  contains  the  leading  principle  of  Eng- 
lish law  on  the  subject  of  British  nationality."     The  exceptions 


108  PRIVATE    INTERNATIONAL    LAW. 

afterwards  mentioned  by  Mr.  Dicey  arc  only  these  two:  "i.  Any 
person  who  (his  father  being  an  aHen  enemy)  is  born  in  a  part  of 
the  British  dominions,  which  at  the  time  of  such  person's  birth 
IS  in  hostile  occupation,  is  an  alien."  "2.  Any  person  whose  father 
(being  an  alien)  is  at  the  time  of  such  person's  birth  an  ambassa- 
dor or  other  diplomatic  agent  accredited  to  the  Crown  by  the 
sovereign  of  a  foreign  state  is  (though  born  within  the  British 
dominions)  an  alien." 

It  thus  clearly  appears  that  by  the  law  of  England  for  the  last 
three  centuries,  beginning  before  the  settlement  of  this  country, 
and  continuing  to  the  present  day,  aliens  while  residing  in  the 
dominions  possessed  by  the  Crown  of  England,  were  within  the 
allegiance,  the  obedience,  the  faith  or  loyalty,  the  protection,  the 
power,  the  jurisdiction,  of  the  English  sovereign ;  and  therefore 
every  child  born  in  England  of  alien  parents  was  a  natural-born 
subject,  unless  the  child  of  an  ambassador  or  other  diplomatic 
agent  of  a  foreign  state,  or  of  an  alien  enemy  in  hostile  occupation 
of  the  place  where  the  child  was  born. 

The  same  rule  was  in  force  in  all  the  English  colonies  upon 
this  continent  down  to  the  time  of  the  Declaration  of  Inde- 
pendence, and  in  the  United  States  afterwards,  and  continued  to 
prevail  under  the  Constitution  as  originally  established.  The 
Charuiing  Betsy,  2  Crauch  64,  119;  I)iglis  v.  Saiiors'  Siiug  Har- 
bor, 3  Pet.  99 ;  Shanks  r.  Dupont,  3  Pet.  242 ;  Dred  Scott  v.  Sand- 
ford,  19  How.  393 ;  United  States  v.  Rhodes,  i  Abbott  (U.  S.)  28 
The  Supreme  Court  of  North  Carolina,  speaking  by  Mr. 
Justice  Gaston,  said:  "Before  our  Revolution,  all  free  persons 
born  within  the  dominions  of  the  King  of  Great  Britain,  whatever 
their  color  or  complexion,  were  native-born  British  subjects ;  those 
born  out  of  his  allegiance  v»^ere  aliens."  "Upon  the  Revolution,  no 
other  change  took  place  in  the  law  of  North  Carolina,  than  was 
consequent  upon  the  transition  from  a  colony  dependent  on  an 
European  King  to  a  free  and  sovereign  state ;"  "British  subjects 
m  North  Carolina  became  North  Carolina  freemen ;"  and  all  free 
persons  born  within  the  state  are  born  citizensof  the  state."  "The 
term  'citizen,'  as  understood  in  our  law,  is  precisely  analogous  to 
the  term  'subject'  in  the  common  law,  and  the  change  of  phrase 
has  entirely  resulted  from  the  change  of  government.  The  sov- 
ereignty has  been  transferred  from  one  man  to  the  collective  body 
of  the  people ;  and  he  who  before  was  a  'subject  of  the  King'  is 
now  'a  citizen  of  the  state.'  "  Stale  v.  Manuel,  4  Dev.  &  Bat.  20, 
24-26. 


NATIONALIIY.  10*1' 

It  was  contended  by  one  of  the  learned  counsel  for  the  United 
States  that  the  rule  of  the  Roman  law,  by  which  the  citizenship 
of  the  ch.ild  followed  that  of  the  parent,  was  the  true  rule  of  inter- 
national law.  as  now  recognized  in  most  civilized  countries,  and 
had  superseded  the  rule  of  the  common  law,  depending  on  birth 
within  the  realm,  originally  founded  on  feudal  considerations. 

There  is  little  ground  for  the  theory  that,  at  the  time  of  the 
adoption  of  the  Fourteenth  Amendment  of  the  Constitution  of  the 
United  States,  there  was  any  settled  and  definite  rule  of  inter- 
national law,  generally  recognized  by  civilized  nations,  inconsistent 
with  the  ancient  rule  of  citizenship  by  birth  within  the  dominion. 

Both  in  England  and  in  the  United  States,  indeed,  statutes 
have  been  passed,  at  various  times,  enacting  that  certain  issue 
born  abroad  of  English  subjects,  or  of  American  citizens,  respec- 
tively, sb.ould  inherit,  to  some  extent  at  least,  the  rights  of  their 
parents.  Rut  those  statutes  applied  only  to  cases  coming  within 
their  purport ;  and  they  have  never  been  considered,  in  either 
country,  as  affecting  the  citizenship  of  persons  born  withm  its 
dominion. 

By  the  Constitution  of  the  United  States,  Congress  was  em- 
powered "to  establish  an  uniform  rule  of  naturalization."  In  the 
exercise  of  this  power.  Congress,  by  successive  acts,  beginning" 
with  the  act  entitled  "An  act  to  establish  an  uniform  rule  of  natu- 
ralization," passed  at  the  second  session  of  the  First  Congress, 
under  the  Constitution,  has  made  provision  for  the  admission  to 
citizenship  of  three  prmcipal  classes  of  persons:  F^irst.  Aliens,, 
havincf  resided  for  a  certain  time  within  the  limits  and  under  the 
jurisdiction  of  the  United  States,"  and  naturalized  individuall>" 
by  proceedings  in  a  court  of  record.  Second.  Children  of 
persons  so  naturalized,  "dwelling  within  the  United  State?,  and 
being  under  the  age  of  twenty-one  years  at  the  time  of  such 
naturalization."  Third.  Foreign-born  children  of  American  citi- 
zens, coming  within  the  definitions  prescribed  by  Congress.  Acts- 
of  March  26,  1790,  c.  3:  January  29.  1795,  c.  20;  June  18,  1798,. 
c.  54;  I  Stat.  103.  114,  566,  April  14,  1802,  c.  28;  March  26,  1804, 
c.  47;  2  Stat.  153.  292;  February  10,  1855,  c.  71  ;  10  Stat.  604;. 
Rev.  Stat.  §§  2165.  2172,  1993 

In  the  act  of  1790,  the  provision  as  to  foreign-born  children 
of  American  citizens  was  as  follows:  "The  children  of  citizens 
of  the  United  States,  that  may  be  born  beyond  sea,  or  out  of  tiic 
limits  of  the  United  States,  shall  be  considered  as  natural-born 
citizens:  Provided,  that  the  right  of  citizenship  shall  not  descend 


110  PRIVATE    INTERNATIONAL    LAW. 

to  persons  whose  fathers  have  never  been  resident  in  the  United 
States."  I  Stat.  104.  In  1795,  this  was  recnacted,  in  the  same 
words,  except  in  substituting,  for  the  woi  ds  "beyond  sea,  or  out  of 
the  hmits  of  the  United  States,"  the  words  "out  of  the  hmits  and 
jurisdiction  of  the  United  States."  i  Stat.  415. 

In  1802,  all  former  acts  were  repealed,  and  the  provisions 
concerning-  children  of  citizens  were  reenacted  in  this  form : 
•'The  children  of  persons  duly  naturalized  under  any  of  the  laws 
of  the  United  States,  or  who,  previous  to  the  passing  of  any  law 
on  that  subject  by  the  Government  of  the  United  States,  may  have 
become  citizens  of  any  one  of  the  said  States  under  the  laws 
thereof,  being  under  the  age  of  twenty-one  years  at  the  time  of 
their  parents  being  so  naturalized  or  admitted  to  the  rights  of  citi- 
zenship, shall,  if  dwelling  in  the  United  States,  be  considered  as 
citizens  of  the  United  States ;  and  the  children  of  persons  who  now 
are.  or  have  been  citizens  of  the  United  States  shall,  though  born 
out  of  the  limits  and  jurisdiction  of  the  United  States,  be  con- 
sidered as  citizens  of  the  United  States :  Provided,  that  the  right 
of  citizenship  shall  not  descend  to  persons  whose  fathers  have 
never  resided  within  the  United  States."  Act  of  April  14,  1802. 
c.  28.  §4:2  Stat.  i55.< 

The  provision  of  that  act.  concerning  "the  children  of  per- 
sons duly  naturalized  under  any  of  the  laws  of  the  United  States," 
not  being  restricted  to  the  children  of  persons  already  naturalized, 
might  well  be  held  to  include  children  of  persons  thereafter  to  be 
naturalized.  2  Kent  Com.  51,  52;  JVcst  v.  JVcst,  8  Paige.  433; 
United  States  v.  Kellar,  1 1  Bissell,  314 ;  Boyd  v.  Thayer,  143  U.  S. 

^35,  ^77- 

But  the   provision   concerning  foreign-born   children,   bemg 

expressly  limited  to  the  children  of  persons  who  then  were  or 
had  been  citizens,  clearly  did  not  include  foreign-born  children 
of  any  person  who  became  a  citizen  since  its  enactment.  2  Kent 
Com.  52,  53 :  Rinney  on  Alienigenns,  20,  25 ;  2  Amer.  Law  Reg. 
J203,  205.  Mr.  Binney's  paper,  as  he  states  in  his  preface,  was 
printed  bv  him  in  the  hope  that  Congress  might  supply  this  defect 
in  our  law. 

In  accordance  with  his  suggestions,  it  was  enacted  by  the 
statute  of  February  10,  1855,  c.  71,  that  "persons  heretofore 
born,  or  hereafter  to  be  born,  out  of  the  limits  and  jurisdiction  of 
the  United  States,  whose  fathers  were  or  shall  be  at  the  time  of 
their  birth  citizens  of  the  United  States,  shall  be  deemed  and 
considered  and  are  herebv  declared  to  be  citizens  of  the  United 


NATIONALITY.  HI 

States :  Provided,  however,  that  the  rights  of  citizenship  shall 
not  descend  to  persons  whose  fathers  never  resided  in  the  United 
States."     lo  Stat.  604;  Rev.  Stat.  §  1993. 

It  thus  clearly  appears  that,  during  the  half  century  inter- 
vening between  1802  and  1855,  there  was  no  legislation  whatever 
for  the  citizenship  of  children  born  abroad,  during  that  period, 
of  American  parents  who  had  not  become  citizens  of  the  United 
States  bef-ore  the  act  of  1802;  and  that  the  act  of  1855,  like  every 
otl'Cr  act  of  Congress  upon  the  subject,  has,  by  express  proviso, 
restricted  the  right  of  citizenship,  thereby  conferred  upon  foreign- 
born  children  of  American  citizens,  to  those  children  themselves, 
tmless  they  became  residents  of  the  United  States.  Here  is  noth- 
ing to  countenance  the  theory  that  a  general  rule  of  citizenship 
by  blood  or  descent  has  displaced  in  this  country  the  fundamental 
rule  of  citizenship  by  birth  within  its  sovereignty. 

So  far  as  we  are  informed,  there  is  no  authority,  legislative, 
executive  or  judicial,  in  England  or  America,  which  maintains 
or  intimates  that  the  statutes  (whether  considered  as  declaratorv, 
or  as  merely  prospective,)  conferring  citizenship  on  foreign-born 
children  of  citizens,  have  superseded  or  restricted,  in  any  respect, 
the  established  rule  of  citizenship  by  birth  within  the  dominion. 
Even  those  authorities  in  this  country,  which  have  gone  farthest 
towards  holding  such  statutes  to  be  but  declaratory  of  the  coin- 
rnon  law.  have  distinctly  recognized  and  emphatically  asserted 
the  citizenship  of  native-born  children  of  foreign  parents.  2  Kent 
Com.  39,  50,  53,  258  note;  Lynch  v.  Clarke,  i  Sandf.  Ch.  583, 
659;  Ludlaiii  V.  Ludlam,  26  N.  Y.  356.  371. 

Passing  by  questions  once  earnestly  controverted,  but  finally 
put  ar  rest  by  the  Fourteenth  Amendment  of  the  Constitution,  it 
is  beyond  doubt  that,  before  the  enactment  of  the  Civil  Rights 
Act  of  1866  or  the  adoption  of  the  Constitutional  Amendment, 
all  white  persons,  at  least,  born  within  the  sovereignty  of  the 
United  States,  \vhether  children  of  citizens  or  of  foreigneers, 
excepting  only  children  of  ambassadors  or  public  ministers  of  a 
foreign  government,  were  native-born  citizens  of  the  United 
States. 

In  the  fore  front,  both  of  the  Fourteenth  Amendment  of  tiie 
Constitution,  and  of  the  Civil  Rights  Act  of  1866,  the  fundamental 
principle  of  citizenship  by  birth  within  the  dominion  was  reaf- 
firmed in  the  most  exi)licit  and  comprehensive  terms. 

The  Civil  Rights  Act,  passed  at  the  first  session  of  the 
Thirty-ninth  Congress,  began  by  enacting  that  "all  persons  born 


112  PRIVATE    INTERNATIONAL    LAW. 

in  the  United  States,  and  not  subject  to  any  foreign  power,  exclud- 
ing Indians  not  taxed,  arc  hereby  declared  to  be  citizens  of  the 
United  States ;  and  such  citizens,  of  every  race  and  color,  with- 
out regard  to  any  previous  condition  of  slavery  or  involuntary 
servitude,  except  as  a  punishment  for  crime  whereof  the  party 
shall  have  been  duly  convicted,  shall  have  the  same  right,  in 
every  State  and  Territory  in  the  United  States,  to  make  and 
enforce  contracts,  to  sue,  be  parties  and  give  evidence,  to  inherit, 
purchase,  lease,  sell,  hold  and  convev  real  and  personal  property, 
and  to  full  and  equal  benefit  of  all  laws  and  proceedings  for  the 
security  of  person  and  property,  as  is  enjoyed  by  white  citizens, 
and  shall  be  subject  t')  like  punishment,  pains  and  penalties,  and 
to  none  other,  any  law,  statute,  ordinance,  regulation  or  custom,. 
to  the  contrary  notwithstanding."  Act  of  April  9,  1866  c.  31, 
§  I  ;  14  Stat.  27. 

The  same  Congress,  snortly  afterwards,  evidently  thinking- 
it  unv\'ise,  and  perhaps  unsafe,  to  leave  so  im.portant  a  declaration 
of  rights  to  depend  upon  an  ordinary  act  of  legislation,  which 
might  be  repealed  by  any  subsequent  Congress,  framed  the  Four- 
teenth. Amendment  of  the  Constitution,  and  on  June  16,  1866,  by 
joint  resolution  proposed  it  to  the  legislatures  of  the  several 
States;  and  on  July  28,  1868.  the  Secretary  of  State  issued  a 
proclamation  showing  it  to  have  been  ratified  by  the  legislatures 
of  the  requisite  num.ber  of  States.     14  Stat.  358;  15  Stat.  708. 

The  first  section  of  the  P'ourteenth  Amendment  of  the  Con- 
stitution begins  with  the  words,  "All  persons  born  or  naturalized 
in  the  United  States,  and  subject  to  the  jurisdiction  thereof,  are 
citizens  of  the  United  States  and  of  the  State  wherein  they 
reside."  As  appears  upon  the  face  of  the  amendment,  as  well 
as  from  the  history  of  the  times,  this  was  not  intended  to  impose 
any  new  restrictions  upon  citizenship,  or  to  prevent  any  persons 
from  becoming  citizens  by  the  fact  of  birth  within  the  United 
States,  who  would  thereby  have  become  citizens  according  to  the 
law  existing  before  its  adoption.  It  is  declaratory  in  form,  and 
enabling  and  ex+ending  in  efi:"ect.  Its  main  purpose  doubtless 
was,  as  has  been  often  recognized  by  this  court,  to  establish  the 
citizenship  of  free  negroes,  which  had  been  denied  m  the  opinion 
delivered  by  Chief  Justice  Taney  in  Drcd  Scott  v.  Sandford, 
(^1857)  19  How.  393;  and  to  put  it  beyond  doubt  that  all  blacks, 
as  well  as  whites,  born  or  naturalized  within  the  jurisdiction  of 
the  United  State,  are  citizens  of  the  Ignited  States.  The  Slaugh- 
terhouse Cases,  (1873)   16  Wall.  36,  73;  Sirauder  v.  West  Vir- 


& 


NATIONALITY.  113 

ginia,  (1879)  ^^O  U.  S.  303,  306;  Ex  parte  I'irrrinia,  (1879)  100 
U.  S.  339,  345;  Ncal  V.  Dclai^'aic,  (i88oj  103  L'.  S.  370,  386; 
Elk  V.  ll'ilkins,  ( 1884)  1 12  U.  S.  94,  loi.  Hut  the  opening  words, 
"all  persons  born,"  are  general,  not  to  say  universal,  restricted 
only  bv  nlace  and  jurisdiction,  and  not  by  color  or  race — as  was 
clearly  recognized  in  all  the  opinions  delivered  in  The  Slanghtcr- 
liot'.se  Cases,  above  cited. 

In  these  cases,  the  point  adjudged  was  that  a  statute  of 
Louisiana,  granting  to  a  particular  corporation  the  exclusive  right 
for  twenty-five  years  to  have  and  maintain  slaughterhouses 
within  a  certain  district  including  the  city  of  New  Orleans, 
requiring  all  cattle  intended  for  sale  or  slaughter  in  that  district 
to  be  brought  to  the  yards  and  slaughterhouses  of  the  grantee, 
authorizing  all  butchers  to  slaughter  their  cattle  there,  and 
empowering  the  grantee  to  exact  a  reasonable  fee  for  each  animal 
slaughtered,  was  within  the  police  powers  of  the  State,  and  not 
in  conflict  with  the  Thirteenth  Amendment  of  the  Constitution 
as  creatmg  an  in\'ohintary  servitude,  nor  with  the  Fourteenth 
Amendment  as  abridging  the  privileges  or  immunities  of  citizens 
of  the  United  States,  or  as  depriving  persons  of  their  liberty  or 
property  without  due  process  of  law,  or  as  denying  to  them  the 
equal  protection  of  the  laws. 

Mr.  Justice  Miller,  delivering  the  opinion  of  the  majority 
of  the  court,  after  observing  that  the  Thirteenth,  Fourteenth  and 
Fifteenth  Articles  of  Amendment  of  the  Constitution  were  all 
addressed  to  the  grievances  of  the  negro  race,  and  were  designed 
to  remedy  them,  continued  as  follows;  ''We  do  not  say  that  no 
one  else  but  the  negro  can  share  in  this  protection.  Both  the 
language  and  spirit  of  these  Articles  are  to  have  their  fair 
and  just  weight  in  any  question  of  construction.  Undoubtedly, 
while  negro  slavery  alone  was  in  the  mind  of  the  Congress  which 
proposed  the  Thirteenth  Article,  it  forbids  any  other  kind  of 
slavery,  now  or  hereafter.  If  Mexican  peonage  or  the  Chinese 
coolie  labor  system  shall  develop  slavery  of  the  Mexican  or 
Chinese  race  within  our  territory,  this  Amendment  may  safely 
be  trusted  to  make  it  void.  Peonage  Cases,  123  Fed.  Rep.  671  ; 
United  States  v.  MeClellan,  127  Fed.  Rep.  971.  And  so  if  other 
rights  are  assailed  by  the  States,  which  properly  and  neces- 
sarily fall  within  the  protection  of  these  Articles,  that  pro- 
tection will  apply,  though  thje  party  interested  may  not  be  of 
African  descent."  16  Wall.  72.  And  in  treating  of  the  first 
clause  of  the  Fourteenth  Amendment,  he  said :  "The  distinction 
8 


114  PRIVATE    INTERNATIONAL    LAW. 

between  citizenship  of  the  United  States  and  citizenship  of  a 
State  is  clearly  recognized  and  established.  Not  only  may  a  man 
be  a  citizen  of  the  United  States  without  being  a  citizen  of  a  State, 
but  an  important  element  is  necessary  to  convert  the  former  into 
the  latter.  He  must  reside  within  the  State  to  make  him  a  citizen 
of  it,  but  it  is  only  necessary  that  he  should  be  born  or  naturalized 
in  the  United  States  to  be       citizen  of  the  Union."     i6  Wall. 

7^^  74- 

Mr.  ^ustice  Field,  in  a  dissenting  opinion,  in  which  Chief 

Justice  Chase  and  Justices  Swayne  and  Bradley  concurred,  said 
of  the  same  clause  :  "It  recognizes  in  express  terms,  if  it  does  not 
create,  citizens  of  the  United  States,  and  it  makes  their  citizen- 
ship dependent  upon  the  place  of  their  birth,  or  the  fact  of  their 
adoption,  and  not  upon  the  constitution  or  laws  of  any  State  or 
the  condition  of  their  ancestry."  i6  Wall.  95,  in.  Mr.  Justice 
Bradley  also  said  ;  "The  question  is  now  settled  by  the  Four- 
teenth Amendment  itself,  that  citizenship  of  the  United  States 
Is  the  primarv  citizenship  in  this  country ;  and  that  state  citizen- 
ship IS  secondary  and  derivative,  depending  upon  citizenship  of 
the  United  States  and  the  citizen's  place  of  residence.  The  States 
have  not  now,  if' they  ever  had,  any  power  to  restrict  their  citi- 
zenship to  any  classes  or  persons."  16  Wall.  112.  And  Mr. 
Justice  Swayne  added:  "The  language  employed  is  unqualified 
in  its  scope.  There  is  no  exception  in  its  terms,  and  there  can  be 
properly  none  in  their  application.  By  the  language  'citizens  of 
the  United  States'  was  meant  all  such  citizens ;  and  by  'any 
person'  was  meant  all  persons  within  the  jurisdiction  of  the  State. 
No  distinction  is  intimated  on  account  of  lace  or  color.  This 
court  has  no  authority  to  interpolate  a  limitation  that  is  neither 
expressed  nor  implied.  Our  duty  is  to  execute  the  law,  not  to 
make  it.  The  protection  provided  was  not  intended  to  be  con- 
fined to  those  of  any  particular  race  or  class,  but  to  embrace 
eqi-'.ally  all  races,  classes  and  conditions  of  men."  16  Wall.  128, 
129. 

Mr.  Justice  Miller,  indeed,  while  discussing  the  causes  which 
led  to  the  adoption  of  the  Fourteenth  Amendment,  made  this 
remark:  "The  phrase,  'subject  to  its  jurisdiction,"  was  intended 
to  exclude  from  its  operation  children  of  ministers,  consuls,  and 
citizens  or  subjects  of  foreign  States,  born  within  the  United 
States."  16  Wall.  y^.  This  was  wholly  aside  from  the  question 
in  judgment,  and  from  the  course  of  reasoning  bearing  upon  that 
question.    It  was  unsupported  by  any  argument,  or  by  any  refer- 


NATIONALITY.  115 

ence  to  authorities ;  and  that  it  was  not  formulated  with  the  same 
care  and  exactness,  as  if  the  case  Ijefore  the  court  liad  called  for 
an  exact  definition  of  the  phrase,  is  apparent  from  its  classing 
foreign  ministers  and  consuls  together — whereas  it  was  then  well 
settled  law,  as  has  since  heen  recognized  in  a  judgment  of  this 
co..rt  in  wliich  Mr.  Justice  Miller  concurred,  that  consuls,  as 
such,  and  imless  expressly  invested  with  a  diplomatic  character 
in  addition  to  their  ordinary  powers,  are  not  considered  as 
entrusted  with  authority  to  represent  their  sovereign  in  his  inter- 
course with  foreign  States  or  to  vindicate  his  prerogatives,  or 
entitled  hy  the  law  of  nations  to  the  privileges  and  immunities 
of  ambassadors  or  public  ministers,  but  are  subject  to  the  juris- 
diction, civil  and  criminal,  of  the  courts  of  the  country  in  which 
they  reside,  i  Kent  Com.  44;  Story  Conflict  of  Laws,  §  48; 
Wheaton  International  Law,  (8th  ed.)  §  249;  The  Anne,  (1818) 
3  Wheat,  435,  445,  446;  Gitiings  v.  Crawford,  (1838)  Taney,  i, 
10;  In  re  Eaiz,  (  1890)  135  U.  S.  403,  424. 

In  weighing  a  remark  uttered  under  such  circumstances,  it 
is  well  to  bear  in  mind  the  often  quoted  words  of  Chief  Justice 
Marshall :  "It  is  a  maxim  not  to  be  disregarded,  that  general 
expressions,  in  every  opinion,  are  to  be  taken  in  connection  with 
the  case  in  which  those  expressions  are  used.  If  they  go  beyond 
the  case,  they  may  be  respected,  but  ought  not  to  control  the 
judgment  in  a  subsequent  suit  when  the  very  point  is  presented 
for  decision.  Th.e  reason  of  this  maxim  is  obvious.  The  ques- 
tion actually  before  the  court  is  investigated  with  care,  and  con- 
sidered in  its  full  extent.  Other  principles  which  may  serve  to 
illustrate  it  are  considered  in  their  relation  to  the  case  decided, 
but  their  possible  bearing  on  all  other  cases  is  seldom  completely 
investigated."    Cohens  v.  Virginia,  (1821)  6  Wheat.  264,  399. 

That  neither  Mr.  Justice  Miller,  nor  any  of  the  justices  who 
took  part  in  the  decision  of  The  Slaughterhouse  Cascs,  understood 
the  court  to  be  committed  to  the  view  that  all  children  born  in 
the  United  States  of  citizens  or  subjects  of  foreign  States  were 
excluded  from  the  operation  of  the  first  sentence  of  the  Four- 
teenth Amendment,  is  manifest  from  a  unanimous  judgment  of 
the  court,  delivered  but  two  years  later,  while  all  those  judges 
but  Chief  Justice  Chase  were  still  on  the  bench,  in  which  Chief 
Justice  Waite  said:  "Allegiance  and  protection  are,  in  this  con- 
nection," (that  is,  in  relation  to  citizenship,)  "reciprocal  obliga- 
tions. The  one  is  a  compensation  for  the  other :  allegiance  for 
protection,   and   protection    for   allegiance."     "At   common    law. 


116  PRIVATE    INTERNATIONAL    LAW. 

with  the  nomenclature  of  which  the  framers  of  the  Constitution 
were  famiHar,  it  was  never  doubted  that  all  children,  born  in  a 
country,  of  parents  who  were  its  citizens,  became  themselves,, 
upon  their  birth,  citizens  also.  These  were  natives,  or  natural- 
born  citizens,  as  distinguished  from  aliens  or  foreigners.  Some 
authorities  go  further  and  include  as  citizens  children  born  within 
the  jurisdiction,  without  reference  to  the  citizenship  of  their 
parents.  As  to  this  class  there  have  been  doubts,  but  never  as  to 
the  first.  For  the  purposes  of  this  case  it  is  not  necessary  to 
solve  these  doubts.  It  is  sufficient,  for  everything  we  have  now 
to  consider,  that  all  children,  born  of  citizen  parents  within  the 
jurisdiction,  are  themselves  citizens."  Minor  v.  Happcrsctt,. 
(1874)  21  Wall.  162,  166-168.  The  decision  in  that  case  was. 
that  a  woman  born  of  citizen  parents  within  the  United  States 
was  a  citizen  of  the  United  States,  although  not  entitled  to  vote, 
the  right  to  the  elective  franchise  not  being  essential  to  citizenship. 

The  only  adjudication  that  has  been  made  by  this  court  upon 
the  meaning  of  the  clause,  '"and  subject  to  the  jurisdiction 
thereof,"  in  the  leading  provision  of  the  Fourteenth  Amendment, 
is  Elk  v.  JVilkins,  112  U.  S.  94,  in  which  it  was  decided  that  an 
Indian  born  a  member  of  one  of  the  Indian  tribes  within  the 
United  States,  which  still  existed  and  was  recognized  as  an 
Indian  tribe  by  the  United  States,  who  had  voluntarily  separated 
himself  from  his  tribe,  and  taken  up  his  residence  among  the 
white  citizens  of  a  State,  but  who  did  not  appear  to  have  been 
naturalized,  or  taxed,  or  in  any  way  recognized  or  treated  as  a 
citizen,  either  by  the  United  States  or  by  the  State,  was  not  a 
citizen  cf  the  United  States,  as  a  person  born  in  the  United  States, 
"and  subject  to  the  jurisdiction  thereof,"  within  the  meaning  of 
the  clause  in  question. 

That  decision  was  placed  upon  the  grounds,  that  the  meaning 
of  those  words  was,  "not  merely  subject  in  some  respect  or 
degree  to  the  jurisdiction  of  the  United  States,  but  completely 
subject  to  their  political  jurisdiction,  and  owing  them  direct  and 
immediate  allegiance ;"  that  by  the  Constitution,  as  originally 
established,  "Indians  not  taxed"  were  excluded  from  the  persons 
according  to  whose  numbers  representatives  in  Congress  and 
direct  taxes  were  apportioned  among  the  several  States,  and 
Congress  was  empowered  to  regulate  commerce,  not  only  "with 
foreign  nations,'  and  among  the  several  States,  but  "with  the 
Indian  tribes ;"  that  the  Indian  tribes,  being  within  the  territorial 
limits  of  the  United  States,  were  not,  strictly  speaking,  foreign 


NATIONALITY.  117 

States,  but  were  alien  nations,  distinct  political  communities,  the 
members  of  which  owed  immediate  allegiance  to  their  several 
tribes,  and  were  not  part  of  the  people  of  the  United  States  ;  that 
the  alien  and  dependent  condition  of  the  members  of  one  of  those 
tribes  could  not  be  put  oft'  at  their  own  will,  without  the  action 
or  assent  of  the  United  States ;  and  that  they  were  never  deemed 
citizens,  except  when  naturalized,  collectively  or  individually, 
under  explicit  provisions  of  a  treaty,  or  of  an  act  of  Congress; 
and,  therefore,  that  "Indians  born  within  the  territorial  limits  of 
the  United  States,  members  of,  and  owing  immediate  allegiance 
to,  one  of  the  Indian  tribes  (an  alien,  though  dependent,  power), 
although  in  a  geographical  sense  born  in  the  United  States,  are  no 
more  'born  in  the  United  States,  and  subject  to  the  jurisdiction 
thereof,'  within  the  meaning  of  the  first  section  of  the  Fourteenth  ^ 
Amendment,  than  the  children  of  subjects  of  any  foreign  gov- 
ernment born  within  the  domain  of  that  government,  or  the 
children  born  within  the  United  States  of  ambassadors  or  other 
public  ministers  of  foreign  nations."  And  it  was  observed  that 
the  language  used,  in  defining  citizenship,  in  the  first  section  of 
the  Civil  Rights  Act  of  1866,  by  the  very  Congress  which  tramed 
the  Fourteenth  Amendment,  was  "all  persons  born  in  the  United 
States,  and  not  subject  to  any  foreign  power,  excluding  Indians 
not  taxed."     112  U.  S.  99-103. 

Mr.  Justice  Harlan  and  Mr.  Justice  Woods,  dissenting,  were 
of  opinion  that  the  Indian  in  question,  having  severed  himself 
from  his  tribe  and  become  a  bona  fide  resident  of  a  State,  had 
therebv  become  subject  to  the  jurisdiction  of  the  United  States, 
within  the  meaning  of  the  Fourteenth  Amendment ;  and,  in  reter- 
ence  to  the  Civil  Rights  Act  of  1866,  said:  "Beyond  question, 
by  that  act.  national  citizenship  was  conferred  directly  upon  all 
persons  in  this  country,  of  whatever  race  (excluding  only  'Indians 
not  taxed"),  who  were  born  withm  the  territorial  limits  of  the 
United  States,  and  were  not  subject  to  any  foreign  power."  And 
that  view  was  supported  by  reference  to  the  debates  in  the  Senate 
upon  that  act.  and  to  the  ineffectual  veto  thereof  by  President 
Johnson,  in  which  he  said:  "By  the  first  section  of  the  bill,  all 
persons  born  in  the  United  States,  and  not  subject  to  any  foreign 
power,  excluding  Indians  not  taxed,  are  declared  to  be  citizens 
of  the  United  States.  This  provision  comprehends  the  Chinese 
of  the  Pacific  States,  Indians  subject  to  taxation,  the  people  called 
G\psies,  as  Avell  as  the  entire  race  designated  as  blacks,  poisons 
of  color,  negroes,  mulattoes,  and  persons  of  African  blood.    Every 


118  PRIVATE    INTERNATIONAL    LAW. 

individual  of  those  races,  born  in  the  United  States,  is,  by  the 
bill,  made  a  citizen  of  the  United  States."     112  U.  S.  112-114. 

The  decision  in  Elk  v.  Wiikins  concerned  only  members  of 
the  Indian  tribes  within  the  United  States,  and  had  no  tendency 
to  deny  citizenship  to  children  born  in  the  United  States  of  foreig^n 
parents  of  Caucasian,  African  or  Mongolian  descent,  not  in  the 
diplomatic  service  of  a  foreign  country. 

The  real  object  of  the  Fourteenth  Amendment  of  the  Con- 
stitution, in  qualifying  the  words,  "All  persons  born  in  the  United 
States,"  by  the  addition,  "and  subject  to  the  jurisdiction  thereof," 
would  appear  to  have  been  to  exclude,  by  the  fewest  and  fittest 
words,  (besides  children  of  members  of  the  Indian  tribes,  stand- 
ing in  a  peculiar  relation  to  the  National  Government,  unknown 
to  the  common  law,)  the  two  classes  of  cases — children  born 
of  alien  enemies  in  hostile  occupation,  and  children  of  diplomatic 
representatives  of  a  foreign  State — both  of  which,  as  has  already 
been  shown,  by  the  law  of  England,  and  by  our  own  law,  from  the 
time  of  the  first  settlement  of  the  English  colonies  in  America, 
had  been  recognized  exceptions  to  the  fundamental  rule  of  citzen- 
ship  by  birth  within  the  country.  Calvin's  Case,  7  Rep.  i,  186; 
Cockburn  on  Nationality,  7;  Dicey  Conflict  of  Laws,  177;  Inglis 
V.  Sailors'  Snug  Harbor,  3  Pet.  99,  155  ;  2  Kent  Com.  39,  42. 

The  foregoing  considerations  and  authorities  irresistibly 
lead  us  to  these  conclusions :  The  Fourteenth  Amendment 
affirms  the  ancient  and  fundamental  rule  of  citizenship  by  birth 
within  the  territory,  in  the  allegiance  and  under  the  protection  of 
the  country,  including  all  children  here  born  of  resident  aliens, 
-with  the  exceptions  or  qualifications  (as  old  as  the  rule  itself)  of 
children  of  foreign  sovereigns  or  their  ministers,  or  born  on 
foreign  public  ships,  or  of  enemies  within  and  during  a  hostile 
occupation  of  part  of  our  territory,  and  with  the  single  additional 
exception  of  children  of  members  of  the  Indian  tribes  owing 
direct  allegiance  to  their  several  tribes.  The  Amendment,  in  clear 
words  and  in  manifest  intent,  includes  the  children  born,  within 
the  territory  of  the  United  States,  of  all  other  persons,  of  what- 
ever race  or  color,  dom.iciled  within  the  United  States.  Every 
citizen  or  subject  of  another  country,  while  domiciled  here,  is 
within  the  allegiance  and  the  protection,  and  consequently  subject 
to  the  jurisdiction,  of  the  United  States.  His  allegiance  to  the 
United  States  is  direct  and  immediate,  and,  although  but  local  and 
temporary,  continuing  only  so  long  as  he  remains  within  our 
territory,  is  yet,  in  the  words  of  Lord  Coke,  in  Calvin's  Case,  7 


NATIONALITY.  119 

Rep.  6a,  "strong  enough  to  make  a  natural  subject,  for  if  he  hath 
issue  here,  that  issue  is  a -natural-horn  subject;"  and  his  child, 
as  said  by  Mr.  Binney  in  his  essay  before  quoted,  "if  born  in  the 
country,  is  as  much  a  citizen  as  the  natural-born  child  of  a  citizen, 
and  by  operation  of  the  same  principle."  It  can  hardly  be  denied 
that  an  alien  is  completely  subject  to  the  political  jurisdiction  of 
the  country  in  which  he  resides — seeing  that,  as  said  by  Mr. 
Webster,  when  Secretary  of  State,  in  his  Report  to  the  President 
on  Thraslicr's  Case  in  185 1,  and  since  repeated  by  this  court, 
"independently  of  a  residence  with  intention  to  continue  such  resi- 
dence ;  independently  of  any  domiciliation ;  independently  of  the 
taking  of  any  oath  of  allegiance  or  of  renouncing  any  former 
allegiance,  it  is  well  known  that,  by  the  public  law,  an  alien,  or  a 
stranger  born,  for  so  long  a  time  as  he  continues  within  the 
dominions  of  a  foreign  government,  owes  obedience  to  the  laws 
of  that  government,  and  may  be  punished  for  treason,  or  other 
crimes,  as  a  native-born  subject  might  be,  unless  his  case  is  varied 
by  some  treaty  stipulations."  Ex.  Doc.  H.  R.  No.  10.  ist  sess. 
32d  Congress,  p.  4;  6  Webster's  Works,  526;  United  Stales  v. 
Carlisle,  16  Wall.  147,  155;  Calvin's  Case,  7  Rep.  6a;  Ellesmere 
on  Postnati,  63 ;  i  Hale  P.  C.  62 ;  4  Bl.  Com.  74,  92. 

To  held  that  the  Fourteenth  Amendment  of  the  Constitu- 
tion excludes  from  citizenship  the  children,  born  in  the  United 
States,  of  citizens  or  subjects  of  other  countries,  would  be  to  deny 
citizenship  to  thousands  of  persons  of  English,  Scotch,  Irish,  Ger- 
man or  other  European  parentage,  who  have  always  been  con- 
sidered and  treated  as  citizens  of  the  United  States. 

Whatever  considerations,  in  the  absence  of  a  controlling  pro- 
vision of  the  Constitution,  might  influence  the  legislative  or  the 
executive  branch  of  the  Government  to  decline  to  admit  persons 
of  the  Chinese  race  to  the  status  of  citizens  of  the  United  States, 
there  are  none  that  can  constrain  or  permit  the  judiciary  to  refuse 
to  give  full  efl'ect  to  the  peremptory  and  explicit  language  of  the 
Fourteenth  Amendment,  which  declares  and  ordains  that  "All 
persons  born  or  naturalized  in  the  United  States,  and  subject  to 
the  jurisdiction  thereof,  are  citizens  of  the  United  States." 

Chinese  persons,  born  out  of  the  United  States,  remaining 
subjects  of  the  emperor  of  China,  and  not  having  become  citizens 
of  the  United  States,  are  entitled  to  the  protection  of  and  owe 
allegiance  to  the  United  States,  so  long  as  they  are  permitted  by 
the  United  States  to  reside  here ;  and  are  "subject  to  the  jurisdic- 
tion thereof,"  in  the  same  sense  as  all  other  aliens  residing  in  the 


120  PRIVATE    INTERNATIONAL    LAW. 

United  States.  Yick  Wo  v.  Hopkins,  (1886)  118  U.  S.  356;  Law 
Oz^-  Bew  V.  United  States,  (1892)  144  U.  S.  47,  61,  62;  Fong 
Yue  Ting  v.  United  States,  (1893)  149  U.  S.  698,  724;  Lem 
Moon  Sing  v.  fZ/nVcrf  States,  (1895)  158  U.  S.  538,  547;  Wong 
Wing  V.  United  States,  (1896)  163  U.  S.  228,  238. 

It  is  true  that  Chinese  persons  born  in  China  cannot  be 
naturalizerl,  like  otlier  ahens,  by  proceedings  under  the  naturah- 
zation  laws.  But  this  is  for  want  of  any  statute  or  treaty  author- 
izing or  permitting  such  naturalization,  as  will  appear  by  tracing 
the  history  of  the  statutes,  treaties  and  decisions  upon  that  sub- 
ject—always bearing  in  mind  that  statutes  enacted  by  Congress, 
as  well  as  treaties  made  by  the  President  and  Senate,  must  yield 
to  the  paramount  and  supreme  law  of  the  Constitution. 

The  power,  granted   to   Congress  by  the   Constitution,   "to 
establish,    an    uniform    rule    of    naturalization,"   was    long    ago 
adjudged   by   this   court  to   be   vested   exclusively    in    Congress. 
Chirac  v.  Chirac,  (1817)   2  Wheat.  259.     For  many  years  after 
the  establishment  of  the  original  Constitution,  and  until  two  years 
after  the  adoption  of  the  Fourteenth  Amendment,  Congress  never 
authorized  the  naturalization  of  any  but  "free  white  persons." 
Acts  of  March  26,  1790,  c.  3,  and  January  29,  1795,  c.  20;  i  Stat. 
103,  414;  April  14,  1802,  c.  28,  and  March  26,  1804,  c.  47;  2  Stat. 
153,  292 ;  March  22,  1816,  c.  32  ;  3  Stat.  258 ;  May  26,  1824,  c.  186, 
and  May  24,  1828,  c.  116;  4  Stat.  69,  310.    By  the  treaty  between 
the  United  States  and  China,  made  July  28,  1868,  and  promul- 
gated  February  5,    1870,  it  was   provided  that   "nothing  herein 
contained  shall  be  held  to  confer  naturalization  upon  citizens  of 
the  United  States  in  China,  nor  upon  the  subjects  of  China  in 
the  United  States."     16  Stat.  740.     By  the  act  of  July  14,  1870, 
c.  254,  §  7,  for  the  first  time,  the  naturalization  laws  were  "ex- 
tended to  aliens  of  African  nativity  and  to  persons  of  African 
descent."      16   Stat.   256.     This   extension,    as   embodied    in   the 
Revised   Statutes,   took  the   form  of  providing  that  those   laws 
should  "apply  to  aliens  [being  free  white  persons,  and  to  aliens] 
of  African  nativity  and  to  persons  of  African  descent ;"  and  it  was 
amended  by  the  act  of  February  18,  1875,  c.  80,  by  inserting  the 
words  above  printed  in  brackets.    Rev.  Stat.  f2d  ed.)  §  2169;  18 
Stat.  318.     Those  statutes  were  held,  by  the  Circuit  Court  ot 
the  United  States  in  California,  not  to  embrace  Chinese  aliens. 
In  re  Ah  Yup,  (1878)  5  Sawyer,  155.     And  by  the  act  of  May  6, 
1882,  c.  126,  §   14,  it  was  expressly  enacted  that  "hereafter  no 


NATIONALITY.  121 

■State  court  or  court  of  the  United  States  shall  admit  Chinese  to 
citizenship  "     22  Stat.  6i. 

In  foiig  Viic  Ting  v.  United  States,  (1893)  above  cited,  this 
■court  said :  "Chinese  persons  not  born  in  this  country  have  never 
been  recognized  as  citizens  of  the  United  States,  nor  autiiorized 
to  become  such  und'T  the  naturalization  laws."  149  U.  S.  716. 

The  convention  between  the  United  States  and  China  of  1894 
provided  that  "Chinese  laborers  or  Chinese  of  any  other  class, 
either  permanently  or  temporarily  residing  in  the  United  States, 
shall  have  for  the  protection  of  their  persons  and  property  all 
rights  that  are  given  by  the  laws  of  the  United  States  to  citzens 
•of  the  mos-  favored  nation,  excepting  the  right  to  become  natural- 
ized citizens."  2S  Stat.  121 1.  .And  it  has  since  been  decided,  by 
the  same  judge  who  held  this  appellee  to  be  a  citizen  of  the  United 
States  by  virtue  of  his  birth  therein,  that  a  native  of  China  of  the 
Mongolian  race  could  not  be  admitted  to  citizenship  under  the 
naturalization  laws.     In  re  Gee  Hop,  (1895)  71  Fed.  Rep.  274. 

The  Fourteenth  Amendment  of  the  Constitution,  in  the  dec- 
laration that  "all  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States  and  of  the  State  wherein  they  reside,"  contemplates  two 
sources  of  citizenship,  and  two  only :  birth  and  naturalization. 
Citizenship  by  naturalization  can  only  be  acquired  by  naturaliza- 
tion under  the  authority  and  in  the  forms  of  law.  But  citizenship 
by  birth  is  established  by  the  mere  fact  of  birth  under  the  cir- 
cumstances defined  in  the  Constitution.  Every  person  born  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof,  becomes  at 
■once  a  citizen  of  the  United  States,  and  needs  no  naturalization. 
A  person  born  out  of  the  jurisdiction  of  the  United  States  can 
only  become  a  citizen  by  being  naturalized,  either  by  treaty,  as  in 
the  case  of  the  annexation  of  foreign  territorv ;  or  bv  authority 
of  Congress,  exercised  either  by  declaring  certain  classes  of  per- 
sons to  be  citizens,  as  in  the  enactments  conferring  citizenship 
upon  foreign-born  children  of  citizens,  or  by  enabling  foreigners 
individually  to  becom.e  citizens  by  proceedings  in  the  judicial  tri- 
bunals, as  in  the  ordinary  provisions  of  the  naturalization  acts. 

The  power  of  naturalization,  vested  in  Congress  by  the  Con- 
stitution, is  a  power  to  confer  citizenship,  not  a  power  to  take  it 
away.  "A  naturalized  citizen,"  said  Chief  Justice  Marshall,  "be- 
comes a  member  of  the  society,  possessing  all  the  rights  of  a  native 
citizen,  and  standing,  in  the  view  of  the  Constitution,  on  the  foot- 
ing of  a  native.    The  Constitution  does  not  authorize  Congress  to 


122  PRIVATE    INTERNATIONAL    LAW. 

enlarge  or  abridge  those  rights.  The  simple  power  of  the 
National  Legislature  is  to  prescribe  a  uniform  rule  of  naturaliza- 
tion, and  the  exercise  of  this  power  exhausts  it,  so  far  as  respects 
the  individual.  The  Constitution  then  takes  him  up.  and,  among 
other  rights,  extends  to  him  the  capacity  of  suing  in  the  courts  of 
the  United  States,  precisely  under  the  same  circumstances  under 
which  a  native  might  sue."  Oshorn  v.  United  States  Bank,  9 
Wheat.  738,  827.  Congress  havmg  no  power  to  abridge  the 
rights  conferred  by  the  Constitution  upon  those  who  have  become 
naturalized  citizens  by  virtue  of  acts  of  Congress,  a  fortiori  no  act 
or  omission  of  Congress,  as  to  providing  for  the  naturalization  of 
parents  or  children  of  a  particular  race,  can  affect  citizenship 
acquired  as  a  birthright,  by  virtue  of  the  Constitution  itself,  with- 
out any  aid  of  legislation.  The  Fourteenth  Amendment,  while  it 
leaves  the  power,  where  it  was  before,  in  Congress,  to  regulate 
naturalization,  has  conferred  no  authority  upon  Congress  to 
restrict  the  effect  of  birth,  declared  by  the  Constitution  to  consti- 
tute a  sufficient  and  complete  right  to  citizenship. 

No  one  doubts  that  the  Amendment,  as  soon  as  it  was  promul- 
gated, applied  to  persons  of  x\frican  descent  born  in  the  United 
States,  w  herever  the  birthplace  of  their  parents  might  have  been ;. 
and  yet,  for  two  years  afterwards,  there  was  no  statute  authorizing 
persons  of  that  race  to  be  naturalized.  If  the  omission  or  the 
refusal  of  Congress  to  permit  certain  classes  of  persons  to  be 
made  citizens  by  naturalization  could  be  allowed  the  effect  of  cor- 
respondinglv  restricting  the  classes  of  persons  who  should 
become  citizens  by  birth,  it  would  be  in  the  power  of  Congress^ 
•at  any  time,  by  striking  negroes  out  of  the  naturalization  laws, 
and  limiting  those  laws,  as  they  were  formerly  limited,  to  white 
persons  only,  to  defeat  the  mam  purpose  of  the  Constitutional 
Amendment. 

The  fact,  therefore,  that  acts  of  Congress  or  treaties  have  not 
permitted  Chinese  persons  born  out  of  this  country  to  become 
citizens  by  naturalization,  cannot  exclude  Chinese  persons  born  in 
this  country  from  the  operation  of  the  broad  and  clear  words  of 
the  Constitution,  "All  persons  born  in  the  United  States,  and 
subject  to  the  jurisdiction  thereof,  are  citizens  of  the  United 
States." 

Upon  the  facts  agreed  in  this  case,  the  American  citizenship 
which  Wong  Kim  Ark  acquired  by  birth  within  the  United 
States  has  not  been  lost  or  taken  away  by  anything  happening- 
smce  his  birth.     No  doubt  he  might  himself,  after  coming  of  age. 


NATIONALITY.  12S 

renounce  this  citizenship,  and  become  a  citizen  of  the  country  of 
his  parents,  or  of  any  other  country  ;  for  by  our  law,  as  solemnly 
declared  by  Congress,  "the  right  of  expatriation  is  a  natural  and 
inherent  right  of  all  people,"  and  "any  declaration,  instruction, 
opmion,  order  or  direction  of  any  officer  of  the  United  States, 
which  denies,  restricts,  impairs  or  questions  the  right  of  expatria- 
tion, is  declared  inconsistent  with  the  fundamental  principles  of 
the  Republic."  Rev.  Stat.  §  1999,  reenacting  act  of  July  27, 
1868,  c.  249,  §  I  ;  15  Stat.  223,  224.  Whether  any  act  of  himself, 
or  of  his  parents,  during  his  minority,  could  have  the  same  effect, 
is  at  least  doubtful.  But  it  would  be  out  of  place  to  pursue  that 
inquiry ;  inasmuch  as  it  is  expressly  agreed  that  his  residence  has 
always  been  in  the  United  States,  and  not  elsewhere ;  that  each  of 
his  temporary  visits  to  China,  the  one  for  some  months  when  he 
was  about  seventeen  years  old.  and  the  other  for  something  like 
a  year  about  the  time  of  his  coming  of  age,  was  made  with  the 
intention  of  returning,  and  was  followed  by  his  actual  return,  to 
the  United  .States ;  and  "that  said  Wong  Kim  Ark  has  not.  either 
by  himself  or  his  parents  acting  for  him,  ever  renounced  his  alle- 
giance to  the  United  States,  and  that  he  has  never  done  or  com- 
mitted any  act  or  thing  to  exclude  him  therefrom." 

The  evident  intention,  and  the  necessary  effect,  of  the  submis- 
sion of  this  case  10  the  decision  of  the  court  upon  the  facts  agreed 
b}  the  parties,  were  to  present  for  determination  the  single  ques- 
tion, stated  at  the  beginning  of  this  opinion,  namely,  whether  n 
child  born  in  the  United  States,  of  parents  of  Chinese  descent, 
who,  at  the  time  of  his  birth,  are  subjects  of  the  Emperor  of 
China,  but  liave  a  permanent  domicil  and  residence  in  the  United 
States,  and  are  there  carrying  on  business,  and  are  not  employed 
in  any  diplomatic  or  official  capacity  under  the  Emperor  of  China, 
becomes  at  the  time  of  his  birth  a  citizen  of  the  United  States. 
For  the  reasons  above  stated  this  court  is  of  opinion  that  the  ques- 
tion must  be  answered  in  the  affirmative. 
Order  adfinncd}'^ 


iO\ 


"Who  May  be  Naturalized. — The  statute  of  the  United  States  applies 
only  to  '"aliens  lieing  free  white  persons  and  to  aliens  of  African  nativity 
and  to  persons  of  African  descent."  The  word  "white"  includes  only 
members  of  the  Caucasian  race.  The  Japanese.  Chinese,  and  Hawaiians 
have  been  refused  naturalization.  The  Caucasian.  Ethiopian,  and  .\merican 
Indian  are  the  onlv  races  permitted,  under  the  present  law,  to  become 
citizens  by  naturalization.  The  Malays  and  Mongolians  are  excluded,  and 
naturalization  papers  granted  to  such  aliens  are  void.  In  re  Takuji  Yama- 
sliita,  30  IVash.  Rep.  234.  70  Pac.  Rep.  4S2:  In  re  Camille.  6  Fed.  Rep.  236; 
In  re  Fo.  28  N.  V.  Supp.  383:  In  re  Kannlca  Niau.  6  Utah  639,  21  Fae.  Rep. 
993,  4  L.  R.  A.  726;  In  re  Saito,  62  Fed.  Rep.  126:  In  re  Rodriguez,  81  Fed, 


124  PRIVATE    INTERNATIONAL    LAW. 

Rep.  327-     Females  may  take  out  naturalization  papers  as  well  as  males. 
Pequignot  v.  City  of  Dciroit,  i6  Fed.  Rep.  211. 

Methods  of  Naturalization. — Naturalization  may  be  effected  in  the  fol- 
lowing ways :  First.  By  general  naturalization  laws ;  Second.  By  mar- 
riage of  an  .alien  woman  to  a  citizen  of  the  United  States;  Third.  By  the 
acquisition  of  foreign  territory;  Fourth.  By  admission  of  a  territory  to 
statehood ;  Fifth.  By  grant  of  the  privilege  to  certain  named  individuals. 
Boyd  V.  Thayer,  143  U.  5'.  135,  36  Sup.  Ct.  Rep.  103. 

The  wife  and  minor  children  of  an  alien  who  takes  out  naturalization 
papers  are  citizens  of  the  United  States,  and  if  any  alien  has  declared  his 
intention  of  becoming  a  citizen,  and  dies  before  he  is  actually  naturalized, 
his  widow  and  children  shall  be  considered  as  citizens,  upon  taking  the 
oath  of  allegiance.  An  alien  woman  who  marries  a  citizen  shall  herself  be 
deemed  a  citizen.    Pequignot  v.  City  of  Detroit,  16  Fed.  Rep.  211. 

On  the  acquisition  of  foreign  territory  it  may  be  provided  that  the 
inhabitants  of  such  territory  shall  become  citizens,  if  no  such  provision, 
such  inhabitants  are  not  citizens,  and  can  only  become  citizens  under  the 
regulations  of  Congress.  As  to  the  status  of  the  inhabitants  of  Porto  Rico 
and  the  Philippine  Islands  see  De  Lima  v.  Bidzvell,  182  U.  S.  i;  Huns  v. 
N.  Y.,  182  U.  S.  392;  Gonzales  v.  Williams,  (Jan.  4.  1904).  24  Sup.  Ct.  Rep. 
177;  In  re  Gonzalez,  118  Fed.  Rep.  941. 

Conditions  Necessary  to  Naturalization  Under  General  Law. — An  alien 
may  be  admitted  to  become  a  citizen  (under  the  general  law)  of  the 
United  States  in  the  following  manner :  First.  Make  a  declaration  of 
intention  to  become  a  citizen,  made  before  the  clerk  of  a  state  or  Federal 
Court,  and  this  declaration  (or  first  papers)  may  be  made  at  any  time  after 
the  alien  arrives,  but  it  must  be  made  at  least  two  years  before  the  oath  of 
allegiance  (last  papers).  Second.  He  must  have  resided  within  the  United 
States  for  a  period  of  five  years,  and  within  the  state  or  territory  where 
the  court  is  held  one  year.  Third.  He  must  be  a  moral  and  law-abiding 
person.  Fourth.  Renounce  his  allegiance  to  his  foreign  sovereignty.  Fifth. 
Take  the  oath  of  allegiance.  This  completes  the  naturalization,  and  until 
the  oath  is  taken  the  person  is  an  alien.  The  declaration  of  intention  does 
not  confer  citizenship. 

The  making  of  a  declaration  of  intention  two  years  before  the  oath  of 
-allegiance  is  not  necessary  if  an  alien  has  continuously  resided  in  the 
United  States  for  a  period  of  five  years,  three  of  which  immediately  pre- 
ceded his  arriving  at  majority.  In  such  cases  the  declaration  of  intention 
and  oath  of  allegiance  may  be  made  at  the  same  time.  City  of  Minneapolis 
■V.  Reum,  56  Fed.  Rep.  576. 

Alien  Friends  and  Alien  Enemies. — Alien  Friends  are  subjects  or  citi- 
zens of  foreign  countries  with  which  we  are  at  peace.  Alien  enemies  are 
those  who  are  subject  to  some  foreign  country  with  which  the  United 
States  is  at  war.  Alien  enemies  are  of  two  kinds — alien  enemies  in  fact 
and  alien  enemies  by  operation  of  law.  Alien  enemies  in  fact  are  subjects 
or  citizens  of  the  country  with  which  we  are  at  war,  alien  enemies  by 
operation  of  law  are  cases  of  our  own  citizens  residing  in  the  enemy's 
country  or  csrrymg  on  business  there  after  the  breaking  out  of  war.  The 
Venus,  8  Cranch  2^3. 

Rights  of  Aliens. — An  alien  may  acquire,  hold,  or  dispose  of  personal 
property,  or  he  may  make  contracts,  sue  and  be  sued,  the  same  as  a  citizen. 
He  is  liable  for  tort  and  may  sue  for  tort.  An  alien  who  is  residing  in 
this  country,  though  his  sovereign  be  at  war  with  us,  and  is  allowed  to 
remain  after  the  breaking  out  of  hostilities,  has  capacity  to  sue  and  be  sued. 
But  aliens  who  reside  in  the  enemy's  country  would  not  be  allowed  to  sue 


NATIONALITY.  125 

in  our  courts  durinp  the  continuance  of  war.     Clark  v.  Morey,  lO  Johns 

(iv.  y.)  69. 

At  the  common  law,  aliens  are  incapable  of  taking  by  descent  or 
inheritance,  for  they  are  not  allowed  to  have  any  inheritable  blood  in  them. 
But  they  may  take  by  grant  or  devise  though  not  by  descent.  In  other 
words,  they  may  take  by  the  act  of  a  party,  but  not  by  operation  of  law  ; 
and  they  may  convey  or  devise  to  another,  but  such  a  title  is  always  liable 
to  be  divested  at  the  pleasure  of  the  sovereign  by  office-found.  In  such 
cases  the  sovereign,  until  entitled  by  office-found  or  its  equivalent,  cannot 
pass  the  title  to  a  grantee.  In  these  respects  there  is  no  difference  betweer> 
an  alien  friend  and  an  alien  enemy.     Hauciistcin  v.  Lynham,  100  U.  S.  483'. 

In  most  states  the  common  law  disabilities  of  aliens  are  modified  and 
they  are  allowed  to  acquire  and  hold  real  estate  to  the  same  extent  as  citi- 
zens, but  in  some  states  non-resident  aliens  are  not  allowed  to  hold  or 
acquire  real  estate.  Wunderle  v.  IVundcrle.  144  III.  40:  Furenes  v.  Nickel- 
son,  86  Iowa  508;  Microsi  v.  Phillipi,  91  Ala.  299;  State  v.  Smith,  70  Cal. 
153- 


CHAPTER  VI. 

LOCALITY  OF  ACTIONS. 

"BRITISH   SO.   AFRICA   CO.   v.   COMPANHIA   DE    MOCAMBIQUE,    1893. 

[18  L.  R.  App.  Cas.  602.] 

I.  Local  and  Transitory  Actions  2.  Actions  for  Injuries  to  Land  in  a 

Distinguished.  Foreign  Jurisdiction. 

Appeal  from  an  order  of  the  Court  of  AppeaL 

In  an  action  by  the  respondents  against  the  appellants  the 
plaintiffs  by  their  statement  of  claim  alleged  (inter  alia)  that 
the  plaintiff  company  was  in  possessioti  and  occupation  of  large 
tracts  of  land  and  mines  and  mining  rights  in  South  Africa  ; 
and  that  the  defendant  company  by  its  agents  wrongfully  broke 
and  entered  and  took  possession  of  the  said  lands,  mines  and 
mining  rights,  and  ejected  the  plaintiff'  company,  its  servants, 
agents  and  tenants  therefrom  ;  and  also  took  possession  of  some 
of  the  plaintiff's  personal  property  and  assaulted  and  imprisoned 
sovie  of  the  plaintiff's. 

Alttrnatively  the  plaintiffs  alleged  in  paragraph  16  that  the 
•defendants  did  the  above  acts  maliciousiy  and  without  any  just 
■cause  or  excuse  and  with  intent  to  injure  and  destroy  the  plain- 
tiffs' trade  and  to  deprive  the  plaintiff's  of  their  lands,  mines  and 
mining  rights  and  to  put  an  end  to  their  existence  as  a  trading 
-company  in  South  Africa. 

The  plaintiffs  claimed  (Inter  alia)  (i.)  a  declaration  that  the 
plaintiff  company  were  lawfully  in  possession  and  occupation  of 
the  lands,  mines  and  mining  rights  and  other  property;  (2.)  an 
injitnction  restraining  the  defendant  company  from  continuing  to 
occupy  or  from  asserting  any  title  to  the  said  lands,  mines  and 
mining  rights,  and  from  withholding  and  keeping  possession  of 
the  said  otner  property;  (3.)   £250,000  damages. 

The  statement  of  defence  in  paragraph  i — as  to  so  much  of 
the  statement  of  claim  as  alleged  a  title  in  the  plaintiff  com- 
pany to  the  lands,  mines  and  mining  rights,  and  alleged  that  the 
defendants  by  their  agents  wrongfully  broke  and  entered  the 
same,   and    claimed   a   declaration    of  title   and   an   injunction — 


LOCALITY    OF    ACTIONS.  127 

whilst  denying  the  alleged  title  and  the  alleged  wrongtui  acts, 
said  that  the  lands,  mines  and  mining  rights  were  situate  ahroad, 
to  wit  in  South  Africa,  and  suhinittcd  that  the  Court  had  no 
jurisdiction  to  adjudicate  upon  the  plaintiff's  claim  ;  and  in  para- 
graph 2  submitted  that  as  matter  of  law  paragraph  i6  of  the  state- 
ment of  claim  disclosed  no  valid  cause  of  action.  The  allegations 
HI  paragraph  9  of  the  defence  are  sufficiently  stated  at  the  close 
of  the  judgment  of  Lord  Herschell  L.C. 

In  paragraph  2  of  the  reply  the  plaintiffs  objected  that  para- 
graphs I  and  9  of  the  defence  were  bad  in  law,  and  alleged  that 
paragraph  i  did  not  shew  that  there  was  any  Court  other  than  that 
in  which  this  action  was  brought  having  jurisdiction  to  adjudicate 
on  the  plaintiffs'  said  claim ;  and  the  plaintiffs  further  alleged 
that  there  was  no  competent  tribunal  having  jurisdiction  to 
adjudicate  on  the  said  claims  in  the  country  where  the  acts  com- 
plained of  were  committed ;  and  that  the  acts  complained  of  were 
illegal  according  to  the  laws  of  the  countrv  where  the  same  were 
committed. 

An  order  having  been  made  for  the  disposal  of  the  points  ol 
law  thus  raised  bv  the  pleadings,  the  Queen's  Bench  Division 
(Lawrence  and  Wright  JJ.)  made  an  order  that  judgment  be 
entered  for  the  defendants  dismissing  the  action  so  far  as  it 
claimed  a  declaration  of  title  to  land,  and  also  so  far  as  it  claimed 
damages  or  an  injunction  in  relation  to  trespass  to  land,  and 
also  as  to  such  portion  of  paragraph  16  of  the  statement  of  claim 
as  referred  to  trespass  to  land  ;  the  objections  raised  by  para- 
graph 2  of  the  reply  being  overruled. 

The  Court  of  Appeal  ( I'  ry  and  Lopes  L.JJ.,  Lord  Esher 
M.R.  dissenting)  made  an  order  which — after  reciting  tha*.  the 
plaintiffs  Iw  their  counsel  had  abandoned  their  appeal  so  far  as 
it  related  to  a  declaration  that  tlie  plaintiff  company  were  law- 
fully in  possession  and  occupation  of  the  lands,  nnnes  and  mining 
rights  and  other  property  in  the  statement  of  claim  mentioned, 
and  also  so  far  as  it  related  to  an  injunction  restraining  the 
<lefendant  company  from  continuing  to  occupy  or  from  asserting 
any  title  to  the  said  lands,  mines  and  mining  rights  and  from 
withholding  and  keeping  possession  of  the  said  other  property — 
ordered  that  the  order  of  the  Queen's  Bench  Division  do  stand 
affirmed  as  regards  so  much  of  the  relief  sought  by  the  statement 
of  claim  as  aforesaid  ;  but  as  to  the  residue  of  the  relief  sought 
by  the  statement  of  claim  declared  that  Her  Majesty's  Supreme 
Court  has  iurisdiction  to  entertain  the  same:  and  ordered  that  the 


128  PRIVATE    INTERNATIONAL    LAW. 

question  as  to  the  plaintiffs'  demurrer  to  the  9th  paragraph  of 
the  defence  do  stand  over  until  the  trial  of  the  action,  to  be  dealt 
with  by  the  judge  at  the  trial. 

Lord  Herschell  L.C.  : — 

My  Lords,  the  principal  question  raised  by  this  appeal  is 
whether  the  Supreme  Court  of  Judicature  has  jurisdiction  to  try 
an  action  to  recover  damages  for  a  trespass  to  lands  situate  in  a 
foreign  country. 

It  is  not  in  controversy  that  prior  to  the  Judicature  Acts  no 
such  jurisdiction  could  have  been  exercised;  but  it  is  asserted  on 
behalf  of  the  respondents  that  the  only  barrier  to  its  exercise  was 
the  technical  one,  that  the  venue  in  such  a  case  must  be  local,  and 
that  the  rules  made  under  the  Judicature  Acts  which  have  abol- 
ished local  venues  have  removed  the  sole  impediment  which  pre- 
vented the  Courts  entertaining  and  adjudicating  on  cases  of  this 
description.  This  contention  has  been  sustained  by  a  majority 
of  the  Court  of  Appeal,  reversing  the  judgment  of  the  Queen's 
Bench  Division,  with  which,  however,  the  Master  of  the  Rolls 
agreed. 

The  nature  of  the  controversy  between  the  parties  renders  it 
necessary  to  consider  the  origin  of  the  distinction  between  local 
and  transitory  actions,  and  the  development  of  the  law  which 
determined  the  venue  or  place  of  trial  of  issues  of  fact. 

It  was  necessary  originally  to  state  truly  the  venue — that  is, 
the  place  in  which  it  arose — of  every  fact  in  issue,  whether  those 
on  which  the  plaintiff  relied,  or  any  matter  stated  by  way  of 
defence ;  and  if  the  places  w^ere  different,  each  issue  would  be 
tried  by  a  jury  summoned  from  the  place  in  which  the  facts  in 
dispute  were  stated  to  have  arisen.  After  the  statute  17  Car.  2, 
c.  8,  which  provided  that  "after  verdict  judgment  should  not  be 
stayed  or  reversed  for  that  there  was  no  right  venue,  so  as  the 
cause  were  tried  by  a  jury  of  the  proper  county  or  place  where 
the  action  was  laid."  the  practice  arose,  which  ultimately  became 
regular  and  uniform,  of  trying  all  the  issues  by  a  jury  of  the 
venue  laid  in  the  action,  even  though  some  of  the  facts  were  laid 
elsewhere.  When  juries  ceased  to  be  drawn  from  the  particular 
town,  parish,  or  hamlet  where  tlie  fact  took  place,  that  is,  from 
amongst  those  who  were  supposed  to  be  cognisant  of  the  circum- 
stances, and  came  to  be  drawn  from  the  body  of  the  county  gen- 
erally, and  to  be  bound  to  determine  the  issues  judicially  after 


LOCALITY    OF    ACTIONS.  129 

hearing  witnesses,  the  law  bep^an  to  discriminate  between  cases  in 
which  the  truth  of  the  venue  \.as  material  and  those  in  which  it 
was  not  so.  This  gave  rise  to  the  distinction  between  transitory 
and  local  actions,  that  is,  between  those  in  which  the  facts  relied 
on  as  the  foundation  of  the  plaintiff's  case  have  no  necessary  con- 
nection with  a  particular  locality  and  those  in  which  there  is 
such  a  connection.  In  the  latter  class  of  actions  the  plaintilf  was 
bound  to  lav  the  venue  truly ;  in  the  former  he  might  lay  it  m 
any  county  he  pleased.  It  was,  however,  still  necessary  to  lay 
every  local  fact  with  its  true  venue  on  peril  of  a  variance  if  it 
should  be  brought  in  issue.  Where  a  local  matter  occurre>l  out 
of  the  realm,  a  difficulty  arose,  inasmuch  as  it  was  supposed  that 
the  issue  could  not  be  tried,  as  no  jury  could  be  summoned  from 
the  place,  and  it  was  by  the  general  rule  essential  that  a  juiy 
should  be  summoned  from  the  venue  laid  to  the  fact  in  issue.  It 
was,  however,  early  decided  that,  notwithstanding  the  general 
rule,  such  matters  might  be  tried  by  a  jury  from  the  venue  in  the 
action,  and  thus  the  difficulty  was  removed  and  the  form  was  in- 
troduced of  adding  after  the  statement  of  the  foreign  place  the 
words,  "To  wit  at  Westminster  in  the  county  of  Middlesex,"  or 
whatever  else  might  happen  to  be  the  venue  in  the  action. 

The  point  arose  in  30  &  31  Eliz.,  in  an  action  of  assumpsit  on 
a  policy  of  assurance.  Cited  in  Doivdalc's  Case,  6  Rep.  47  b.  The 
plaintiff  declared  that  the  defendant  at  London  "did  assume  that 
such  a  ship  should  sail  from  Melcomb  Regis,  in  the  county  of 
Dorset,  to  Abvile  in  France  safely,  and  that  the  said  ship  in 
sailing  towards  Abvile,  scilicet  in  the  river  of  Soame  in  the  realm 
of  France,  was  arrested  by  the  King  of  France."  The  parties 
came  to  issue  whether  the  ship  was  so  arrested  or  not,  and  this 
issue  was  tried  before  the  Chief  Justice  in  London,  and  found 
for  the  plaintiff.  It  was  moved  in  arrest  of  judgment,  that  this 
issue,  arising  from  a  place  without  the  realm,  could  not  be  tried ; 
and,  if  it  could,  it  was  contended  the  jury  should  come  from 
Melcomb,  "for  by  common  intendment  they  may  have  best  knowl- 
edge of  the  arrest.'"  But  it  was  resolved  that  the  issue  should  be 
tried  where  the  action  was  brought.  "Here,"  it  was  said,  "the 
promise  was  made  here  in  London,  which  is  the  ground  and 
foundation  of  the  action ;  and  therefore  there  is  in  this  case  of 
necessity  it  shall  be  tried,  or  otherwise  it  should  not  be  tried  at  ail." 

It  is,  I  think,  important  to  observe  that  the  distinction  between 
local  and  transitory  actions  depended  o*"  the  nature  of  the  matters 
involved  and  not  on  the  place  at  which  the  trial  had  to  take  place. 
9 


130  PRIVAl""     INTERNATIONAL    LAW. 

It  was  not  called  a  local  action  because  the  venue  was  local,  or 
a  transitory  action  because  the  venue  might  be  laid  in  any  county, 
but  the  venue  was  local  or  transitory  according  as  the  action 
was  local  or  transitory.  It  will  be  seen  that  this  distinction  is 
material  when  the  Judicature  Rule  upon  which  so  much  turns 
comes  to  be  examined. 

My  Lords,  I  cannot  but  lay  great  stress  upon  the  fact  that 
whilst  lawyers  made  an  exception  from  the  ordinary  rule  in  the 
case  of  a  local  matter  occurring  outside  the  realm  for  which  there 
was  no  proper  pldce  of  trial  in  this  country,  and  invented  a  fiction 
which  enabled  the  Courts  to  exercise  jurisdiction,  they  did  not 
make  an  exception  where  the  cause  of  action  was  a  local  matter 
arising  abroad,  and  did  not  extend  the  fiction  to  such  cases.  The 
rule  that  in  local  actions  tlie  venue  must  be  local  did  not,  where 
the  cause  of  action  arose  in  this  country,  touch  the  jurisdiction 
of  the  Courts,  but  only  determined  the  particular  manner  m 
which  the  jurisdiction  should  be  exercised ;  but  where  the  matter 
complained  of  was  local  and  arose  outside  the  realm,  the  refusal 
to  adjudicate  upon  it  was  in  fact  a  refusal  to  exercise  jurisdiction, 
and  I  cannot  think  that  the  Courts  would  have  failed  to  find  a 
remedy  if  they  had  regarded  the  matter  as  one  within  their  juris- 
diction, and  which  it  was  proper  for  them  to  adjudicate  upon. 

The  earliest  authority  of  importance  is  Skinner  v.  East  India 
Company,  6  State  Trials,  710,  719.  The  House  of  Lords  in  that 
case  referred  it  to  the  judges  to  report  whether  relief  could  be 
obtained  in  respect  of  the  matter  mentioned  in  the  petition,  either 
at  law  or  in  equity,  and  if  so  in  what  manner.  The  judges 
answered,  "that  the  matters  touching  the  taking  away  of  the 
petitioner's  ship  and  goods  and  assaulting  of  his  person,  not- 
withstanding the  same  were  done  beyond  the  seas,  might  be  deter- 
mined upon  by  His  Majesty's  ordinary  Courts  at  Westminster. 
And  as  to  the  dispossessing  him  of  his  house  and  island,  that  he 
was  .lOt  relievable  in  any  ordinary  Court  of  Law." 

Notwithstanding  the  opinion  thus  expressed,  Lord  Mansfield 
entertained  and  acted  on  the  view  that  where  damages  only  were 
sought  in  respect  of  a  trespass  committed  abroad,  and  action  might 
be  maintained  in  this  country,  although  it  was  one  which  would 
here  be  a  local  action.  See  Mosfyn  v.  Fabrigas,  i  Cowp.  161,  180. 
He  referred  to  two  cases  which  had  come  before  him.  One  was 
an  action  against  Captain  Gambler  for  pulling  down  the  houses 
of  some  sutlers.  CJbjection  was  taken  to  the  action  founded  on 
the  case  just  referred  to  of  Skinner  \.  East  India  Company,  6 


LOCALITY    OF   ACTIONS.  ISl 

State  Trials,  710.  719.  Lord  ^Mansfield  overruled  the  obje«:tinn, 
on  this  principle,  that  the  reparation  was  personal  and  for 
dama.i^es  and  that  otherwise  there  would  be  a  failure  of  justice,  for 
it  was  on  the  coast  of  Nova  Scotia,  where  there  were  no  rejrular 
Courts  of  Judicature,  and  if  there  had  been,  Captain  Ganibier 
might  never  go  there  agani,  and  therefore  the  reason  of  locality 
in  such  an  action  in  England  did  not  hold.  The  other  case  was 
that  of  Admiral  Palliser,  who  was  sued  for  destroying  fisliirg 
huts  on  the  Labrador  Coast,  where,  it  was  said,  there  were  no 
local  courts,  and  therefore  whatever  injury  had  been  done  there 
by  any  of  the  King's  officers  would  have  been  altogether  without 
redress  if  the  objection  of  locality  v/ould  have  held.  The  con- 
sequence of  that  circumstance  shewed  (said  Lord  Mansfield)  that 
"where  the  reason  fails,  even  in  actions  which  in  England  would 
be  local  actions,  yet  it  does  not  hold  to  places  beyond  the  seas 
within  the  King's  dominions."  It  does  not  appeai  clear  from 
the  language  used  by  Lord  Mansfield  that  he  would  have  re- 
garded a  trespass  to  land  committed  beyond  the  seas  and  out- 
side the  King's  dominions  as  within  the  cognizance  of  our  Courts. 

The  view  acted  on  by  Lord  Mansfield  in  the  two  cases  re- 
ferred to  has  not  been  followed.  It  came  before  the  Court  of 
Queen's  Bench  for  consideration  in  Dov.lson  v.  Matthews,  4  T.  R. 
503,  which  was  an  action  of  trespass  for  entering  the  plaintiff's 
house  in  Canada  and  expelling  him  theref"om.  The  decisions  of 
Lord  Mansfield  were  relied  on  by  the  plaintiff,  but  the  action  was 
held  not  to  lie.  Ruller  J.  in  delivering  judgment  said:  'Tt  is  now 
too  late  for  us  to  inquire  whether  it  were  wise  or  politic  to  mal<e  a 
distinction  between  transitory  and  local  actions ;  it  is  sufficient 
for  the  Courts  that  the  law  has  settled  the  distinction,  and  that 
an  action  quare  calusum  f regit  is  local.  We  may  try  actions  here 
which  are  in  their  nature  transitory,  though  arising  out  of  a 
transaction  abroad;  but  not  such  as  are  in  their  nature  local." 

In  saying  that  we  may  not  try  actions  here  arising  out  of 
transactions  abroad  which  are  in  their  nature  local,  I  do  not  think 
that  the  learned  judge  was  referring  to  the  mere  technical  diffi- 
culty of  there  being  no  venue  in  this  country  in  which  these 
transactions  could  be  laid,  but  to  the  fact  that  our  Courts  did 
not  exercise  jurisdiction  in  matters  arising  abroad  "which  were 
in  their  nature  local."  The  case  of  Donlson  v.  Matthczi's,  4  T.  R. 
503,  has  ever  since  been  regarded  as  law,  and  I  do  not  think  it 
has  been  considered  as  founded  merely  on  the  technical  difficulty 
that  in  /his  country  a  local  venue  was  requisite  in  a  local  action. 


132  PRIVATE    INTERNATIONAL    LAW. 

In  the  case  of  Mayor  of  London  v.  Cox,  Law  Rep.  2  H.  L. 
at  p.  261,  that  very  learned  judge,  Willes  J.,  said:  "And  even 
in  superior  Courts  themselves,  where  the  subject-matter  is  such  as 
to  imply  a  local  limit  of  jurischction,  the  exception  is  peremptory; 
there  is  no  necessity  for  a  dilatory  plea,  nor  is  the  objection  waived 
by  pleading  in  chief.  Thus,  if  an  action  of  trespass  to  land 
situate  abroad  were  brought  in  the  Queen's  Bench,  the  defendant 
netd  not  plead  a  dilatory  plea  shewing  what  Court  has  jurisdic- 
tion ;  but  if  the  foreign  locality  appeared  upon  the  count  he  might 
demur,  and  if  it  did  not  appear,  he  might  plead  in  chief  or  bar  a 
denial  of  the  trespass  ( which  would  be  assumed  as  alleged  within 
the  jurisdiction),  and  at  the  trial  the  plaintiff  would  be  non- 
suited or  lose  the  verdict ;  and  whether  upon  demurrer  or  plea  the 
ordinary  judgment  would  be  given  for  the  defendant  ( Doulson  v. 
Mdtthezvs):' 

It  is  clear  that  Willes  J.  regarded  an  action  of  trespass  to 
land  situate  abroad  as  outside  the  local  limit  of  jurisdiction  ot  the 
Court  of  Queen's  Bench.  The  same  learned  judge,  in  Phillips  v. 
Eyre,  Law  Rep.  6  Q.  B.  at  p.  28,  said :  "Our  Courts  are  said  to 
be  more  open  to  admit  actions  founded  upon  foreign  transactions 
than  those  of  any  other  European  country ;  but  there  are  restric- 
tions in  respect  of  locality  which  exclude  some  foreign  causes  of 
action  altogether,  namely,  those  which  would  be  local  if  they 
arose  in  England,  such  as  trespass  to  land ;  and  even  with  respect 
to  those  not  falling  within  that  description,  our  Courts  do  not 
undertake  universal  jurisdiction." 

In  the  case  of  The  M.  Moxham,  i  P.  D.  107,  where  injury 
had  been  caused  to  a  pier  belonging  to  an  English  company,  but 
situated  in  a  Spanish  port,  the  ship,  by  the  alleged  negligent  navi- 
gation of  which  the  damage  had  been  caused,  was  arrested  in 
Spain,  but  was  released  on  an  agreement  with  the  owners  that 
their  liability  should  be  determined  by  proceedings  in  the  English 
Courts.  James  L.  J.  said,  that  but  for  the  agreement  come  to 
between  the  parties  "very  grave  difficulties  indeed  might  have 
"arisen  as  to  the  jurisdiction  of  this  Court  to  entertain  any  juris- 
diction or  proceedings  whatever  with  respect  to  injury  done  to 
foreign  soil." 

The  distinction  between  matters  which  are  transitory  or  per- 
sonal and  those  which  are  local  in  their  nature,  and  the  refusal 
to  exercise  jurisdiction  as  regards  the  latter  where  they  occur 
outside  territorial  limits,  is  not  confined  to  the  jurisprudence  of 
this  country.    Story,  in  his  work  on  the  Conflict  of  Laws  (s.  551), 


LOCALITY    OF    ACTIONS.  133 

after  statiiig  that  by  the  Roman  law  a  suit  might  in  many  cases 
be  brought,  either  where  property  was  situate  or  where  the  party 
sued  had  his  doniicil,  proceeds  to  say  that  "even  in  countries 
acknowledging  the  Roman  law  it  has  become  a  very  general 
principle  that  suits  in  rem  should  be  brought  where  the  property 
is  situate ;  and  this  principle  is  applied  with  almost  universal 
approbation  in  regard  to  immovable  property.  I'he  same  rule 
is  applied  to  mixed  actions,  and  to  all  suits  which  touch  the 
realty." 

In  section  553,  Story  quotes  the  following  language  of  Vattel : 
"The  defendant's  judge"  (that  is,  the  competent  judge)  says 
he,  "is  the  judge  of  the  place  where  the  defendant  has  his 
settled  abode,  or  the  judge  of  the  place  where  the  defendant  is 
when  any  sudden  difficulty  arises,  provided  it  does  not  relate  to 
an  estate  in  land,  or  to  a  right  annexed  to  such  an  estate.  In 
such  a  case,  as  property  of  this  kind  is  to  be  held  according  to 
the  laws  of  the  country  where  it  is  situated,  and  as  the  right  of 
granting  it  is  vested  in  the  ruler  of  the  country,  controversies 
relating  to  such  property  can  only  be  decided  in  the  state  in 
which  it  depends."  He  adds,  in  the  next  section :  "It  will  be 
perceived  that  in  many  respects  the  doctrine  here  laid  down 
coincides  with  that  of  the  common  law.  It  has  been  already 
stated  by  the  common  law  personal  actions,  being  transitory, 
may  be  brought  in  any  place  where  ttie  party  defendant  can  be 
found  ;  that  real  actions  must  be  brought  in  the  forum  rei  sita^ ; 
and  that  mixed  actions  are  properly  referable  to  the  same  juris- 
diction. Among  the  latter  are  actions  for  trespasses  and  injuries 
to  real  property  which  are  deemed  local ;  so  that  they  will  not 
lie  elsewhere  than  in  the  place  rei  sitae." 

The  doctrine  laid  down  by  foreign  jurists,  which  is  said  by 
Story  to  coincide  in  many  respects  with  that  of  our  common 
law,  obviously  had  relation  to  the  question  of  jurisdiction,  and 
not  to  any  technical  rules  determining  in  what  part  of  a  country 
a  cause  was  to  be  tried.  Story  was  indeed  regarded  bv  one  of  the 
learned  judges  in  the  Court  below  (Lopes,  L.J.,  [1892]  2  O.  B. 
420)  as  sanctioning  the  view  that  our  rules  in  regard  to  venue 
in  the  case  of  local  actions  offered  the  only  obstacle  to  the  exer- 
cise of  jurisdiction  in  actions  of  trespass  to  real  property.  The 
passage  relied  on  is  as  follows  (s.  554)  :  "Lord  Mansfield  and 
Lord  Chief  Justice  Eyre  held  at  one  time  a  diflferent  doctrine,  and 
allowed  suits  to  be  maintained  in  England  for  injuries  done  by 
pulling  down  houses  in  foreign  unsettled  regions,  namely,  in  the 


134  PRIVATE    INTERNATIONAL    LAW. 

desert  coasts  of  Nova  Scotia  and  Labrador.  But  this  doctrine  has 
been  since  overruled  as  untenable  according  to  the  actual  juris- 
prudence of  England,  however  maintainable  it  might  be  upon 
general  principles  of  international  law,  if  the  suit  were  for  per- 
sonal damages  only." 

By  the  words  "untenable  according  to  the  actual  jurispru- 
dence of  England,"  I  do  not  think  .Story  was  referring  to  the 
rule  which  in  this  country  regulated  the  place  of  trial  in  the 
case  of  local  actions.  Nor  am  T  satisfied  that  either  Lord  Mans- 
field or  Story  would  have  regarded  an  action  of  trespass  to  land 
as  a  suit  for  personal  damages  only,  if  the  title  to  the  land  were 
in  issue,  and  in  order  to  determine  whether  there  was  a  right  to 
damages  it  was  necessary  for  the  Court  to  adjudicate  upon  the 
conflicting  claims  of  the  parties  to  real  estate.  In  both  the  cases 
before  Lord  Mansfield,  as  I  understand  them,  no  question  of  title 
to  real  property  was  in  issue.  The  sole  controversy  was,  whether 
the  British  ofiicers  sued  were,  under  the  circumstances,  justified  in 
interfering  with  the  plaintiffs  in  their  enjoyment  of  it. 

Ihe  question  what  jurisdiction  can  be  exercised  by  the  Courts 
of  any  country  according  to  its  municipal  law  cannot,  I  think, 
be  conclusively  determmed  by  a  reference  to  principles  of  inter- 
national law.  No  nation  can  execute  its  judgments,  whether 
against  persons  or  movables  or  real  property,  in  the  country  of 
another.  On  the  other  hand,  if  the  Courts  of  a  country  were  to 
claim,  as  against  a  person  resident  there,  jurisdiction  to  adjudicate 
upon  the  title  to  land  in  a  foreign  country,  and  to  enforce  its 
adjudication  in  personam,  it  is  by  no  means  certain  that  any 
rule  of  international  law  would  be  violated.  But  in  considering 
what  jurisdiction  our  Courts  possess,  and  have  claimed  to  exercise 
in  relation  to  matters  arising  out  of  the  country,  the  principles 
which  have  found  general  acceptance  amongst  civilized  nations 
as  defining  the  limits  of  jurisdiction  are  of  great  weight. 

It  was  admitted  in  the  present  case,  on  behalf  of  the  respon- 
dents, that  the  Court  could  not  make  a  declaration  of  title,  or 
grant  an  injunction  to  restrain  trespasses,  the  respondents  having 
ui  relation  to  these  matters  abandoned  their  appeal  in  the  Court 
below.  But  it  is  said  that  the  Court  may  inquire  into  the  title, 
and,  if  the  plaintiffs  and  not  the  defendants  are  found  to  have 
the  better  title,  may  award  damages  for  the  trespass  committed. 
My  Lords,  I  find  it  difficult  to  see  why  this  distinction  should 
be  drawn.  It  is  said,  because  the  Courts  have  no  power  to 
enforce   their   judgment   by   any   dealing    with    the   land    itself, 


LOCALITY    OF    ACTIONS.  135 

where  it  is  outside  their  territorial  jurisdiction.  But  if  they 
can  determine  the  title  to  it  and  compel  the  payment  of  damages 
founded  upon  such  determination,  why  should  not  they  equally 
proceed  in  personam  agamst  a  person  who,  in  spite  of  that 
determination,  insists  on  disturbing  one  who  has  been  found  by 
the  Court  to  be  the  owner  of  the  property? 

It  is  argued  that  if  an  action  of  trespass  cannot  be  maintained 
in  this  country  where  the  land  is  situate  abroad  a  wrong-doer  by 
coming  to  this  country  might  leave  the  person  wronged  without 
any  remedv.  It  might  be  a  sufficient  answer  to  ihis  argument 
to  say  tb.at  this  is  a  state  of  things  which  has  undoubtedly  existed 
for  centuries  without  any  evidence  of  serious  mischief  or  any 
intervention  of  the  legislature ;  for  even  if  the  Judicature  Rules 
have  the  effect  contended  for,  I  do  not  think  it  can  be  denied  that 
this  was  a  result  neither  foreseen  nor  intended.  But  there  appear 
to  me,  I  confess,  to  be  solid  reasons  why  the  Courts  of  this  country 
should,  in  common  with  those  of  most  other  nations,  have  refused 
to  adjudicate  upon  claims  of  title  to  foreign  land  in  proceeding? 
founded  on  an  alleged  invasion  of  the  proprietary  rights  attached 
to  it,  ami  to  award  damages  founded  on  that  adjudication. 

The  inconveniences  which  might  arise  from  such  a  course  are 
obvious,  and  it  is  by  no  means  clear  to  my  mind  that  if  the 
Courts  were  to  exercise  jurisdiction  in  such  cases  the  ends  of 
justice  would  in  the  long  run,  and  looking  at  the  matter  broadly. 
be  promoted.  Supposing  a  foreigner  to  sue  in  this  country  for 
trespass  to  his  lands  situate  abroad,  and  for  taking  possession  of 
and  expelling  him  from  them,  what  is  to  be  the  measure  of 
damages?  There  being  no  legal  process  here  by  which  he  could 
obtain  possession  of  the  lands,  the  plaintifif  might,  I  suppose,  in 
certain  circumstances,  obtain  damages  equal  in  amount  to  their 
value.  But  what  would  there  be  to  prevent  his  leaving  this 
country  after  obtaining  these  damages  and  re-possessing  himself 
of  the  lands?  What  remedy  would  the  defendant  have  in  such 
a  case  where  the  lands  are  in  an  unsettled  country,  with  no  laws 
or  regular  system  of  government,  but  where,  to  use  a  familiar 
expression,  the  only  right  is  might?  Such  an  occurrence  is  not 
an  impossible,  or  even  an  improl;able.  hypothesis.  It  is  quite 
true  that  in  the  exercise  of  the  undoubted  jurisdiction  of  the 
Courts  it  may  become  necessary  incitlentally  to  investigate  and 
determine  the  title  to  foreign  land  ;  but  it  does  not  seem  to  me 
to  follow  tliat  because  such  a  question  may  incidentally  arise  and 
fall  to  be  adjudicated  upon,  the  Courts  possess,  or   that   it   is 


136  PRIVATE    INTERNATIONAL    LAW. 

expedient  that  they  should  exercise,  jurisdiction  to  try  an  action 
founded  on  a  disputed  claim  of  title  to  foreign  lands. 

Reliance  was  placed  on  the  decisions  of  Courts  of  Equity,  as 
shewing  that  our  Courts  were  ready,  when  no  technical  difficulty 
of  venue  stood  in  the  way,  to  adjudicate  on  the  title  to  lands 
situate  abroad.  If  the  refusal  of  the  Common  Law  Courts  to 
exercise  jurisdiction  in  cases  of  the  nature  now  under  considera- 
tion had  been  regarded  as  the  result  of  a  mere  technical  diffi- 
culty, I  cannot  help  thinking  that  the  Courts  of  Equity,  which 
were,  in  early  days,  at  all  events,  keen  to  supplement  the  defi- 
ciencies of  the  Common  Law,  when  the  requirements  of  justice 
were  impeded  by  technical  difficulties,  would  have  found  some 
means  of  affording  a  remedy.  Lord  Mansfield,  in  his  judgment 
in  Mostyti  v.  Fabrif^^as  (i  Cowp.  i6i,  i8o),  refers  to  a  case  of  an 
injury  in  the  East  Indies  similar  to  ihat  with  which  he  had  to 
deal  in. the  case  of  Captain  Gambier,  in  which  Lord  Hardwicke 
in  a  Court  of  Equity  had  directed  satisfaction  to  be  made  in 
damages.  But  in  this  exercise  of  jurisdiction  he  has  not  been 
followed  by  any  judge  of  the  Court  of  Chancery. 

Whilst  Courts  of  Equity  have  never  claimed  to  act  directly 
upon  land  situate  abroad,  they  have  purported  to  act  upon  the 
conscience  of  persons  living  here.  In  Lord  Craivstown  v.  John- 
ston (3  Ves.  170,  182),  Sir  R.  P.  Arden,  Master  of  the  Rolls, 
said :  ^'Archer  v.  Preston,  Lord  Arglasse  v.  Muschamp,  and  Lord 
Kildare  v.  Eustace,  clearly  shew  that  with  regard  to  any  contract 
made,  or  equity  between  persons  in  this  country,  respecting  lands 
in  a  foreign  country,  particularly  in  the  British  dominions,  this 
Court  will  hold  the  same  jurisdiction  as  if  they  were  situate  in 
England." 

Story,  in  his  Conflict  of  Laws,  ss.  544,  545,  although  he  says 
that  to  the  extent  of  the  decision  in  Crazvstozvn  v.  Johnston,  (3 
Vcs.  170),  there  may,  perhaps,  not  be  any  well-founded  objection, 
nevertheless  expresses  the  view  that  the  doctrine  of  the  English 
Courts  of  Chancery  on  this  head  of  jurisdiction  seems  carried  to 
an  extent  which  may  perhaps  in  some  cases  not  find  a  perfect 
warrant  in  the  general  principles  of  international  public  law,  and 
therefore  it  must  have  a  very  uncertain  basis  as  to  its  recogni- 
tion in  foreign  countries  so  far  as  it  may  be  supposed  to  be 
founded  upon  the  comity  of  nations.  My  Lords,  the  decisions  of 
the  Courts  of  Equity  do  not,  to  my  mind,  afford  any  substantial 
sui)port  to  the  view  that  the  ground  upon  which  the  Courts  of 
Common  Law  abstained  from  exercising  jurisdiction  in  relation 


LOCALITY    OF    ACTIONS.  137 

to  trespasses  to  real  property  abroad  was  only  the  technical  diffi- 
<-uity  of  venue. 

In  the  case  of  IVhUaker  v.  Forbes  (Law  Rep.  lo  C.  P.  583)  — 
Avhere  the  action  was  begun  before  but  the  demurrer  was  heard 
in  the  Court  of  .Appeal  after  the  Judicature  Acts  came  into  opera- 
tion— the  question  arose  whether  the  plaintiff  could  recover  against 
a  defendant  resident  in  this  country  the  arrears  of  rent-charge 
issuing  out  of  lands  in  Australia.  The  opinion  expressed  by  Lord 
Blackburn  in  the  course  of  the  appeal  in  that  case  was  much 
relied  en  by  the  respondents  :  "I  do  not  think  that  this  case" 
(said  the  learned  judge)  "raises  any  question  as  to  jurisdiction, 
though  in  some  respects  It  has  been  argued  as  if  it  did.  The 
case  turns  on  the  technical  distinction  between  local  actions  where 
the  trial  must  be  local,  and  transitory  actions,  and  the  question  is 
one  of  venue  only."'  It  is  unnecessary  to  consider  whether  in  cir- 
cumstances such  as  gave  rise  to  the  action  of  liliitaker  v.  Forbes 
an  action  might,  since  the  Judicature  Rules  came  into  force,  be 
maintained  in  the  Courts  of  this  country.  I  do  not  think  the 
•dictum  of  tlie  learned  judge  in  that  case  can  be  regarded  as  of 
any  great  weight  in  determining  the  question  with  which  your 
Lordships  have  to  deal. 

The  terms  of  rule  i  of  Order  xxxvi.,  which  are  relied  on  by 
the  plaintiffs,  are  as  follows:  "There  shall  be  no  local  venue  for 
the  trial  of  any  action  except  where  otherwise  provided  by  statute." 
The  language  used  appears  to  me  important.  The  rule  does 
not  purport  to  touch  the  distinction  between  local  and  transi- 
tory action.s — between  matters  which  have  no  necessary  local 
connection,  and  those  which  are  local  in  their  nature.  It  deals 
only  with  the  place  of  trial,  and  enables  actions,  whatever  their 
nature,  to  be  tried  in  any  county.  But  it  is,  in  my  opinion,  a 
mere  rule  of  procedure,  and  applies  only  to  those  cases  in  which 
the  courts  at  that  time  exercised  jurisdiction.  It  has  been  more 
than  once  held  that  the  rules  under  the  Judicature  Acts  are  rules 
of  procedure  only,  and  were  not  intended  to  affect,  and  did  not 
affect,  the  rights  of  parties.  Thus  in  Kendall  v.  Hamilton  (4  App. 
Cas.  503,  516),  it  was  suggested  that  the  law  laid  down  in  King 
V.  Hoare  (13  M.  &  W.  494),  had  been  altered  by  the  Judicature 
Acts  owing  to  the  abolition  of  a  plea  in  abatement.  Lord  Cairns 
said:  "I  am  unable  to  agree  to  this  suggestion.  I  cannot  think 
that  the  Judicature  Acts  have  changed  what  was  formerly  a  joint 
right  of  action  into  a  right  of  bringing  several  and  separate 
actions.    And  although  the  form  of  objecting,  by  means  of  a  plea 


138  PRIVATE    INTERNATIONAL    LAW. 

in  abatement  to  the  non-joinder  of  a  defendant,  who  ought  to  be 
included  in  the  action,  is  aboHshed,  yet  I  conceive  that  the  appUca- 
tion  to  have  the  person  so  omitted  inchided  as  a  defendant  ought  to 
be  granted  or  refused  on  the  same  principles  on  which  a  plea  in 
abatement  would  have  succeeded  or  failed." 

Again,  in  Britain  v.  Rossiter  (ii  O.  B.  D.  at  p.  1229),  Lord 
Esher  M.R.  said :  "1  think  that  the  true  construction  of  tiie 
Judicature  Acts  is  that  they  confer  no  new  rights ;  they  only  con- 
firm the  rights  which  previously  were  found  to  be  existing  in  the 
Courts  either  of  Law  or  Equity." 

According  to  the  contention  of  the  respondents  in  this  case 
the  rule  under  consideration  had  the  elfect  of  conferring  upon 
them  a  right  of  action  in  this  country  which  they  would  not 
otherwise  have  possessed.  As  I  have  already  pointed  out,  a 
person  whose  lands,  situate  in  this  country,  were  trespassed 
upon  always  had  a  right  of  action  in  respect  of  the  trespass.  The 
rules  relating  to  venue  did  no  more  than  regulate  the  manner 
in  which  the  right  was  to  be  enforced.  But  in  respect  of  a  tres- 
pass to  land  situate  abroad  there  was  no  right  of  action,  for  an 
alleged  right  which  the  Courts  would  neither  recognize  nor 
enforce  did  not  constitute  any  right  at  all  in  point  of  law. 

My  Lords,  I  have  come  to  the  conclusion  that  the  grounds 
upon  which  the  Courts  have  hitherto  refused  to  exercise  juris- 
diction in  actions  of  trespass  to  lands  situate  abroad  were  sub- 
stantial and  not  technical,  and  that  the  rules  of  procedure  under 
the  Judicature  Acts  have  not  conferred  a  jurisdiction  which  did 
not  exist  before.  If  this  conclusion  be  well  founded,  I  do  not 
think  that  the  allegation  contained  in  paragraph  16  of  the  state- 
ment of  claim,  "that  the  defendant  company  did  and  committed 
the  acts  above  mentioned  and  complained  of  with  intent  to  injure 
and  destroy  the  trade  of  the  plaintilT  company,  and  to  deprive 
it  of  its  aforesaid  lands,  territories,  mines,  minerals,  and  mining 
rights  and  property,"  disclosed  a  cause  of  action  cognizable  by 
our  Covirts  any  more  than  the  paragraph  complaining  of  trespass. 

The  9ih  paragraph  of  the  statement  of  defence  alleged  that 
the  lands  in  question  were  m  the  possession  of  a  certain  native 
chief  named  Umtasa,  who  exercised  sovereignty  over  the  same, 
and  that  by  a  concession  or  treaty  granted  by  Umtasa  and  his 
indunas  or  council  to  the  defendants,  they  acquired  the  right  to 
possession  and  occupation  of  the  lands,  and  that  the  plaintiffs 
were  wrongfully  attempting  to  take  possession  of  the  lands,  and 
that  the  defendants  did  the  acts  complained  of  in  ordei  co  prevent 


LOCAI.nV    OF    ACTIONS.  139 

the  plaintiffs  from  so  wrongfully  taking  possession  of  them. 
This  defence  was  demurred  to  by  the  2d  paragraph  of  the  reply. 
The  Queen's  Eench  Division  overruled  the  demurrer;  but  the 
Court  of  Appeal  varied  this  judgment  by  ordering  the  demurrer 
to  stand  over  until  the  trial  of  the  action,  to  be  dealt  with  bv  the 
judge  at  the  trial.  The  Master  of  the  Rolls  thought  the  decision 
of  the  Divisional  Court  on  this  point  correct.  And  I  do  not  under- 
stand that  either  of  the  learned  judges  who  concurred  in  varying 
the  order  doubted  that,  if  proved,  the  paragraph  in  dispute  dis- 
closed a  valid  defence  in  point  of  law.  The  case  of  Thompson  v. 
Barclay,  6  L.  J.  (O.S.)  Ch.  93;  9  L.  J.  (O.S.)  Ch.  215,  and 
others  of  the  same  description,  in  which  it  is  said  the  Courts 
have  refused  to  recognize  the  sovereign  rights  of  provinces  which 
had  revolted  from  a  State  at  amity  with  Great  Britain,  and  whose 
independence  was  not  shewn  to  have  been  recognized  by  the 
proper  autliorities  in  this  country,  appear  to  me  to  have  no 
application  to  the  circumstances  of  the  present  case.  I  do  not 
see  any  sufficient  ground  for  disturbing  the  judgment  of  the 
Queen's  Bench  Division  on  this  point.  Whether  the  plea  can 
be  proved,  and  whether  the  determination  of  any  question  raised 
by  it  will  be  for  the  judge  and  not  the  jury,  is  a  question  which 
does  not  arise  at  the  present  time. 

For  the  reasons  with  which  I  have  troubled  your  Lordships  at 
some  length,  I  think  the  judgment  appealed  from  should  be 
reversed  and  the  judgment  of  the  Divisional  Court  restored,  and 
that  the  respondents  should  pay  the  costs  here  and  in  the  Court 
below  and  I  move  your  Lordships  accordingly. 


LITTLE  V.  CHICAGO  &  ST.  PAUL  RY.  CO.,  1896. 
[65  Minn.  48,  33  L.  R.  A.  423.] 

MITCHELL,  J.  This  action  was  brought  to  recover  dam- 
ages for  injuries  to  real  estate  situated  in  Wisconsin, caused  by  the 
negligence  of  the  defendant.  The  question  presented  is,  can  the 
courts  of  this  state  take  cognizance  of  actions  to  recover  damages 
to  real  estate  lying  without  the  state ;  in  other  words,  is  such  an 
action  local  or  transitory  m  its  nature? 

The  history  of  the  progress  of  the  English  common  law 
respecting  the  locality  of  actions  will  aid  in  determining  hov>-  this 
(luestion  ought  to  be  decided  on  principl*^.  Originally,  all  actions 
were  local.    This  arose  out  of  the  constitution  of  the  old  jurv.  who 


140  PRIVATE    INTERNATIONAL    LAW. 

were  but  witnesses  to  prove  or  disprove  the  allegations  of  the 
parties,  and  hence  every  case  had  to  be  tried  by  a  jury  of  the 
vicinage,  who  were  presumed  to  have  personal  knowledge  of  the 
parties  as  well  as  of  the  facts.  But,  as  circumstances  and  condi- 
tions changed,  the  courts  modified  the  rule  in  fact,  although  not 
in  form.  For  that  purpose  they  invented  a  fiction  by  which  a 
party  was  permitted  to  allege,  under  a  videlicet,  that  the  place 
where  the  contract  was  made  or  the  transaction  occurred  was  in 
any  county  in  England.  The  courts  took  upon  themselves  to 
determine  when  this  fictitious  averment  should  and  when  it  should 
not  be  traversable.  They  would  hold  it  not  traversable  for  the 
purpose  of  defeating  an  action  it  was  invented  to  sustain,  but 
always  traversable  for  the  purpose  of  contesting  a  jurisdiction 
not  intended  to  be  protected  by  the  fiction.  Those  actions  in  which 
it  was  held  not  traversable  came  to  be  known  as  transitory,  and 
those  in  which  it  was  held  traversable  as  local,  actions.  Actions 
for  personal  torts,  wherever  committed,  and  upon  contracts 
(including  those  respecting  lands),  wherever  executed,  were 
deemed  transitory,  and  might  be  brought  wherever  the  defendant 
could  be  found. 

As  respects  actions  for  injuries  to  real  property,  we  cannot 
discover  that  it  was  definitely  settled  in  England  to  which  class 
they  belonged  prior  to  the  American  Revolution.  As  late  as 
1774,  in  the  leading  case  of  Mostyn  v.  Fabrigas,  i  Cowp.  161,  2 
Smith,  Lead.  Cas.  (9th  Ed.)  916,  Eord  Mansfield,  who  did  more 
than  any  other  jurist  to  brush  away  those  mere  technicalities 
which  had  so  long  obstructed  the  course  of  justice,  referred  to  two 
cases  in  which  he  had  held  that  actions  would  lie  in  England  for 
injuries  to  real  estate  situated  abroad.  In  that  same  case  he 
said  :  "Can  it  be  doubted  that  actions  may  be  maintained  here,  not 
only  upon  contracts,  which  follow  the  persons,  but  for  injuries 
done  by  subject  to  subject,  especially  for  injuries  where  the 
whole  that  is  prayed  is  a  reparation  in  damages  or  satisfaction 
to  be  made  by  process  against  the  person  or  his  efifects  within  the 
jurisdiction  of  the  court  ?  While  all  that  is  there  said  as  to 
actions  for  injuries  to  real  property  is  obitier,  yet  it  clearly  indi- 
cates the  views  of  that  great  jurist  on  the  subject.  And  we 
caunot  discover  that  it  was  fully  settled  in  England  that  actions 
for  injuries  to  lands  were  local  until  the  decision  of  Doulson  v. 
Matthews,  4  Term  R.  503,  in  1792, — 16  years  after  the  declaration 
of  American  independence.  The  courts  of  England  seem  to  have 
finally  settled  down  upon  the  rule  that  an  action  is  transitory  where 


LOCALITY    OF    ACTIONS.  141 

the  transaction  on  which  it  is  founded  mi.c^ht  have  takeii  place 
an}'\vhere;  hut  is  local  when  the  transaction  is  necessarily  local, — 
that  is,  could  only  have  happened  in  a  particular  place.  As 
an  injury  to  land  can  only  he  committed  where  the  land  lies,  it 
followed  that,  according  to  this  test,  actions  for  such  injuries 
were  held  to  he  local.  As  the  distinction  hctween  local  and 
transitory  venues  was  aholished  hy  the  judicature  act  of  1873, 
we  infer  that  actions  for  injuries  to  lands  lying  ahroad  may  now  he 
maintained  in  England. 

It  is  somewhat  surprising  that  the  American  courts  have 
generally  given  more  weight  to  the  English  decisions  on  the  suh- 
ject  rendered  after  the  Revolution  than  to  those  rendered  before, 
and  hence  have  almost  universally  held  that  actions  for  injuries 
to  lands  are  local.  In  the  leading  case  of  Livingston  v.  Jeflcrson, 
I  Brock.  203,  Fed.  Cas.  No.  8,411,  which  has  done  more  than 
any  other  to  mold  the  law  on  the  subject  in  this  country,  Chief 
Justice  IMarshall  argued  against  the  rule,  showing  that  it  was 
merely  technical,  founded  on  no  sound  principle,  and  often 
defeated  justice;  but  concluded  that  it  was  so  thoroughly  estab- 
lished by  authority  that  he  was  not  at  liberty  to  disregard  it.  But 
so  unsatisfactory  and  unreasonable  is  the  rule  that  since  that  time 
it  has,  in  a  number  of  states,  been  changed  by  statute,  and  in 
others  the  courts  have  frequently  evaded  it  by  metaphysical  dis- 
tinctions in  order  to  prevent  a  miscarriage  of  justice.  Chief 
Justice  Marshall's  own  state  of  Virginia  changed  the  rule  by 
statute  as  early  as  1819.  Some  courts  have  made  a  subtle  distinc- 
tion between  faults  of  omission  and  of  commission.  Thus  in  Titus 
V.  Inhabitants  of  Frankfort,  15  Me.  89,  which  was  an  action 
against  a  town  for  damages  sustained  by  reason  of  defects  in  a 
highway,  it  was  held  that,  while  highways  must  be  local,  the 
neglect  of  the  defendant  to  do  its  duty,  being  a  mere  non- 
feasance, was  transitory.  It  has  also  been  held  that  where  trespass 
up.m  land  is  followed  by  the  asportation  of  timber  severed  from 
the  land,  if  the  plaintiff  waives  the  original  trespass,  and  sues 
simply  for  the  conversion  of  the  property  so  carried  away,  the 
action  would  become  transitory.  American  U.  Tel.  Co.  v.  Mid- 
dleton,  80  N.  Y.  ^08;  Whiddcn  v.  Seelye.  40  Me.  247.  .A.gain. 
it  has  been  sometimes  held  that  an  action  for  injury  to  real 
estate  is  transitory  where  the  gravamen  of  the  action  is  negli- 
gence,— as  for  negligently  setting  fire  to  the  plaintiff's  premises. 
Home  Ins.  Co.  v.  Pennslyvania  R.  Co.,  11  Hun.  182;  Barney  v. 
Burstenbinder,  7  Lans.  210.    In  Ohio  tiie  rule  has  been  repudiated. 


142  PRIVAl  ,    INTERNATIONAL    LAW. 

at  least  as  to  causes  of  action  arising  within  the  state,  as  being 
wholly  unsuited  to  their  condition,  because  under  their  judicial 
system  it  would  result  in  many  cases  in  a  total  denial  of  justice. 
Geniii  v.  Grier,  lo  Ohio,  209. 

Almost  every  court  or  judge  who  has  ever  discussed  the 
question  has  criticised  or  condemned  the  rule  as  technical,  wrong 
on  principle,  and  often  resulting  in  a  total  denial  of  justice,  and  yet 
has  considered  himself  bound  to  adhere  to  it  under  the  doctrine 
of  stare  decisis. 

An  action  for  damages  for  injuries  to  real  property  is  on 
principle  just  as  transitory  in  its  nature  as  one  on  contract  or  for 
a  tort  committed  on  the  person  or  personal  property.  The  repara- 
tion is  purely  personal,  and  for  damages.  Such  an  action  is 
purely  personal  and  in  no  sense  real.  Every  argument  founded 
on  practical  considerations  against  entertaining  jurisdiction  of 
actions  for  injuries  to  lands  lying  in  another  state  could  be 
urged  as  to  actions  on  contracts  executed,  or  for  personal  torts 
committed,  out  of  the  state,  at  least  where  the  subject-matter  of 
the  transaction  is  not  within  the  state.  Take,  for  example,  per- 
sonal actions  on  contracts  respecting  lands  which  are  conceded 
to  be  transitory.  An  investigation  of  title  of  boundaries,  etc.,  may 
be  desirable,  and  often  would  be  essential  to  the  determination 
of  the  case,  yet  such  considerations  have  never  been  held  to  render 
the  actions  local.  Another  serious  objection  to  the  rule  is  that 
imder  it  a  party  may  have  a  clear,  legal  right  without  a  remedy 
where  the  wrongdoer  cannot  be  found,  and  has  no  property 
within  the  state  where  the  land  is  situated.  As  suggested  by 
plaintiff's  counsel,  if  the  rule  be  adhered  to,  all  that  the  one  who 
commits  an  injury  to  land,  v/hether  negligently  or  willfully,  has 
to  do  in  order  to  escape  liability,  is  to  depart  from  the  state 
where  the  tort  was  committed,  and  refrain  from  returning.  In 
such  case  the  owner  of  the  land  is  absolutely  remediless. 

We  recognize  the  respect  due  to  judicial  precedents,  and  the 
authority  of  the  doctrine  of  stare  decisis ;  but,  inasmuch  as  this 
rule  is  in  no  sense  a  rule  of  property,  and  as  it  is  purely  technical, 
wrong  in  principle,  and  in  practice  often  results  in  a  total  denial 
of  justice,  and  has  been  so  generally  criticised  by  eminent  jurists, 
we  do  not  feel  bound  to  adhere  to  it,  notwithstanding  the  great 
array  of  judicial  decisions  in  its  favor.  If  the  courts  of  England, 
generations  ago,  were  at  liberty  to  invent  a  fiction  in  order  to 
change  the  ancient  rule  that  all  actions  were  local,  and  then  fix 
their  own  limitations  to  the  application  of  the  fiction  we  cannot 


LOCALITY    OF    ACTIONS.  143 

•see  why  the  courts  of  the  present  day  shouia  deem  themselves 
slavishly  bound  by  those  limitations. 

It  is  ssugg-estcd  that  tlie  statutes  of  this  state,  in  conformity  to 
the  old  rule,  make  actions  for  injuries  to  real  property  local.  G.  S. 
1894.  §§  5182,  5183.  This  is  true,  and  stranj^ely  enoui^h,  in  1885 
the  legislature  went  so  far  as  to  provide  that,  if  the  county  desig- 
nated in  the  complaint  is  not  the  proper  one,  the  court  should 
have  no  jurisdiction  of  the  action.  But  this  statute  has  no  appli- 
cation to  causes  of  action  arising  out  of  the  state.  While  it  settles 
the  rule,  and  indicates  the  policy  of  this  state  as  to  actions  for 
injuries  to  real  property  within  the  state,  we  do  not  think  it  ought 
to  have  any  weight  in  determining  what  the  rule  should  be  as  to 
■causes  of  action  arising  out  of  the  state,  which  can  have  no  local 
venue  here  under  the  provisions  of  tlie  statute.  It  does  not  ai)pear 
whether  the  plaintiff  lives  in  this  state  or  in  Wisconsin,  but  this 
is  immaterial,  for  the  place  of  his  residence  cannot  affect  the 
nature  of  the  action.  It  is  also  true  that  in  this  particular  case 
jurisdiction  of  the  defendant  could  be  obtained  in  Wisconsin,  but 
this  fact  is  likewise  immaterial,  and  for  the  same  reason. 

Ortler  reversed. 

Buck,  J.  I  dissent.  The  doctrine  laid  dowm  in  the  fore- 
going opinion  is  conceded  to  be  agamst  the  great  weight  of 
judicial  authority,  and,  according  to  my  view,  is  unsound  in  prin- 
ciple, and  contrary  to  a  wise  public  policy.  The  plaintiff  is  a 
citizen  of  the  state  of  Wisconsin,  and  the  defendant  a  railroad  cor- 
poration organized  under  the  laws  of  that  state  w^ith  its  line  con- 
structed therein  and  extending  into  this  state.  The  action  is 
brought  in  Minnesota  to  recover  for  dainages  done  by  the  defend- 
ant to  plaintiff's  real  estate  situate  in  the  state  of  Wisconsin.  In 
my  opinion,  the  action  is  one  clearly  local  in  its  nature,  and  not 
transitory,  and  the  courts  of  this  state  have  no  jurisdiction  over 
the  subject  matter. 

In  Cooley  on  Torts  (page  471)  it  is  said  that: 
"The  distinction  between  transitory  and  local  actions  is  this : 
If  the  cause  of  action  is  one  that  might  have  arisen  anywhere,  then 
it  is  transitory ;  but  if  it  could  onlv  have  arisen  in  one  place,  then  it 
is  local.  Therefore,  while  an  action  of  trespass  to  the  person  or  for 
the  conversion  of  goods  is  transitory,  action  for  flowing  lands  is 
local,  because  they  can  be  flooded  only  where  they  are.  For  the 
most  part,  the  actions  which  are  local  are  those  brought  for  the 
xecovery  of  real  estate,  or  for  injuries  thereto  or  to  easements. 


144  PRIVATE    INTERNATIONAL    LAW, 

[Here  the  mjnry  allegcc  consisted  in  burning 'the  grass,  roots^ 
vegetable  mold,  and  other  material  forming  part  of  the  plaintiff's- 
land.]  *  *  *  That  actions  for  trespasses  on  lands  in  a  foreign 
country  cannot  be  sustauied  is  the  settled  law  in  England  and  in 
this  country." 

I  am  not  able  to  state  whether  it  has  been  changed  by  statu- 
tory enactment,  and  the  majority  opinion  merely  infers  that  il  has- 
been  so  changed.  Blackstone,  whose  Commentaries  were  written 
and  delivered  in  the  form  of  lectures  before  the  students  of 
Oxford  University  m  1758,  says,  that:  "All  over  the  world 
actions  transitory  follow  the  person  of  the  defendant,  while  terri- 
torial suits  must  be  discusssed  in  the  territorial  tribunal.  I  may 
sue  a  Frenchman  here  for  a  debt  contracted  abroad ;  but  lands 
lying  in  France  must  be  sued  for  there,  and  English  lands  must  be 
sued  for  in  the  kingdom  of  England." 

The  case  of  Mostyn  v.  Fabrigas,  i  Cowp.  161,  decided  in 
1774,  is  referred  to  as  a  leading  case,  yet  the  question  here 
involved  was  not  before  the  court  in  that  case.  There  the  plaintiff, 
Fabrigas,  brought  an  action  against  Mostyn  for  assault  and  false 
imprisonment  committeed  on  the  Island  of  Minorca,  and  it  was 
held  that  the  court  had  jurisdiction  of  the  subject-matter.  This 
was  a  transitory  action,  within  the  rules  of  all  the  courts.  That  a 
jurist  as  great  as  Lord  Mansfield  should  inject  into  his  opinion  m 
that  case  a  remark  that  was  entirely  without  any  relevancy  to  the 
question  under  consideration,  adds  but  little  force  to  its  weight. 
And  its  force  is  still  further  lessened  by  the  fact  that  ever  since 
that  decision  the  law  of  England  has  been  setted  by  other  eminent 
.  jurists  as  otherwise,  and  contrary  to  the  majority  opinion  in  this 
case.  It  seems  to  me  misleading  to  call  the  case  of  Mostyn  v. 
Fabrigas  a  leading  one,  and  cite  it  as  such  upon  an  important 
legal  question,  when  the  point  here  involved  was  not  there  in  issue. 
While  the  great  weight  of  authority  is  manifestly  against  the 
doctrine  laid  down  by  the  majority  opinion,  it  may  be  well  to 
refer  to  some  of  them  more  in  detail. 

In  the  case  of  Allin  v.  Conncclicut  R.  L.  Co.^  150  Mass.  560, 
23  N.  E.  581,  it  was  held  that  an  action  of  tort  for  breaking  and 
entering  the  plaintiff's  close,  situated  in  another  state,  could  not 
be  brought  in  the  commonwealth  of  Massachusetts ;  and  the 
court,  in  commenting  upon  the  statute  of  that  state  which  required 
actions  for  trespass  quare  clausum  to  be  brought  in  the  county 
where  the  land  lies,  said :  "There  seems  to  be  no  reason  for 
holding  that  the  statute  renders  an  action  for  trespass  to  lands. 


LOCALITY  OF  ACTIONS.  145 

outside  the  state  transitory  which  does  not  apply  to  an  action  for 
trespass  to  lands  within  the  state."  The  statute  has  been  in 
existence  nearly  lOO  years,  and  we  have  not  been  referred  to 
any  authority  or  dictum  to  sustain  the  position  of  the  plaintiff. 
On  the  contrary,  the  action  of  trespass  quare  clausum  has  always 
been  treated  as  a  local  action.  In  the  case  of  Nilcs  v.  Hoivc,  57 
Vt.  388,  it  was  held  that  trespass  on  the  freehold  would  not  lie  in 
that  state  for  a  trespass  committed  on  lands  situated  in  the  state 
of  Massachusetts. 

In  Du  Bretiil  7'.  Pennsylvania  Co.,  130  Ind.  137,  29  N.  E.  909, 
the  court  say  an  action  cannot  be  maintained  in  this  state  for  an 
injury  to  land  lying  in  another  state,  caused  by  a  railway  com- 
pany having  a  line  of  railroad  running  through  this  and  such  other 
state.  That  court  also  applied  the  same  doctrine  to  an  action  for 
injury  to  land  caused  by  fire  escaping  from  a  locomotive,  in  the 
case  of  Indiana,  B  &•  W.  fdy.  Co.  v.  Foster,  107  Ind.  430.  8  N.  E. 
264.  In  the  first  Indiana  case  above  cited  Chief  Justice  Elliot: 
says :  "The  case  before  us  is  one  in  which  the  land  lies  within 
the  territory  of  another  sovereignty,  and  there  can  be  no  doubt 
upon  principle  or  authority  that  our  courts  have  no  jurisdiction." 
In  Eachus  v.  Trustees,  17  111.  534,  it  was  held  that  the  courts  of 
Illinois  had  no  jurisdiction  in  an  action  to  recover  for  injuries 
to  land  situate  in  Lake  county,  in  the  state  of  Indiana.  In  Bettys 
V.  Mihi'aukee  &  St.  P.  Ry.  Co.,  37  Wis.  323,  it  was  held  that  an 
action  for  injury  to  realty  situated  in  Iowa  could  not  be  main- 
tained in  the  courts  of  the  state  of  Wisconsin.  Chief  Justice 
Ryan,  delivering  the  opinion  of  the  court,  said  that  it  was  plainly 
a  local  action  under  all  of  the  authorities,  which  could  not  be 
maintained  in  the  state  of  Wisconsin ;  and  he  cited  Co.  Litt.  282a , 
Bac.  Abr.  "Action"  A  (p.  799)  ;  Comyn,  Dig.  "Action"  N,  4,  5 
(p.  251)  ;  Doulson  v.  Matthczvs,  4  Term  R.  503. 

In  the  state  of  New  York  the  doctrine  is  well  settled  by 
numerous  decision^  of  its  highest  court  that  suits  cannot  be  there 
maintained  for  injuries  to  lands  situated  in  other  states.  See 
American  U.  Tel.  Co.  v.  Middlehon,  80  N.  Y.  408;  Cragin  v. 
Level,  88  N.  Y.  258;  Sentenis  v.  Ladezv,  140  N.  Y.  463,  35  N.  E. 
650;  Dodge  V.  Colby,  108  N.  Y.  445,  15  N.  E.  703.  In  the  last 
case  Chief  Justice  Ruger,  in  delivering  the  opinion,  says : 

"The  doctrine  that  the  courts  of  this  state  have  no  jurisdic- 
tion of  actions  for  trespass  upon  lands  situated  in  other  states 
is  too  well  settled  to  admit  of  discussion  or  dispute.  *  *  * 
10 


146  PRIVATE    INTERNATIONAL    LAW. 

The  claim  urged  by  the  plaintiff,  that,  if  not  permitted  to  maintain 
this  action,  he  is  without  remedy  for  a  most  serious  injury,  is 
quite  groundless,  and  affords  no  reason  for  the  assumption  of  a 
juiisdiction  by  this  court  which  it  does  not  possess.  The  plaintiff 
would  seem,  to  have  the  same  remedy  for  the  trespasses  alleged 
that  all  other  parties  have  for  similar  injuries.  His  lands  cannot 
be  intruded  upon  without  the  presence  in  the  state  of  the  wrong- 
doer, and  no  reason  is  suggested  wdiy  he  could  not  seek  his  remedy 
against  the  actual  wrongdoers  in  the  courts  having  jurisdiction. 
His  remedy  is  ample,  and  it  is  no  excuse  for  assuming  a  jurisdic- 
tion which  we  do  not  have  that  the  plaintiff  desires  a  remedy 
against  a  particular  person,  rather  than  one  against  the  real  per- 
petrators of  the  injury,  who  were  exposed  to  prosecution  in  the 
place  where  the  wrong  was  committed." 

This  language  would  apply  to  the  plaintiff  in  this  case.  The 
defendant  is  a  resident  of  the  state  of  Wisconsin,  subject  to  its 
laws,  and  service  of  summons  can  there  be  readily  and  easily 
made  upon  it.  The  gravamen  of  the  complaint  is  injury  to  the 
freehold,  and  the  records  of  title  to  that  freehold,  whether  in  or 
out  of  the  plaintiff,  are  accessible  without  trouble,  and  witnesses, 
doubtless,  are  obtainable  without  extra  expense.  The  plaintiff 
is  not  without  redress  otherwise  than  in  the  courts  of  Minnesota. 
In  fact  it  is  not  claimed  ihat  the  courts  of  Wisconsin  have  no 
jurisdiction  to  try  this  action,  and  it  is  plain  that  they  have  such 
jurisdiction. 

As  a  matter  of  policy,  citizens  of  other  states  should  not  be 
permitted  the  use  of  our  courts  to  redress  wrongs  and  injuries 
to  real  property  committed  within  their  own  territory.  That  is 
not  wdiat  our  courts  were  created  or  organized  for.  Nonresi- 
dents should  not  be  invited  to  bring  to  our  courts  litigation  aris- 
ing over  injuries  to  real  property  outside  of  our  territorial  limits. 
Certainly  there  is  nothing  in  our  constitution  or  laws  which 
justifies  them  in  imposing  the  burden  of  maintaining  courts  at 
our  expense  for  their  use  and  benefit.  Protection  of  our  own  citi- 
zens is  the  primary  object  and  duty  of  our  own  courts,  and  it  is, 
to  say  the  least,  a  very  generous  and  liberal  interpretation  of  the 
law  which  accords  to  suitors  residing  in  other  states  the  right 
to  litigate  in  our  courts  questions  of  injury  to  real  estate  there 
situate,  wliile  the  courts  of  those  states  reject  the  claim  of  our 
own  citizens  to  litigate  there  injury  to  real  estate  situate  here; 
notably  the  adjoining  state  of  Wisconsin,  which  adjoins  our 
state,  and  where  the  subject-matter  of  this  litigation  is  situated. 


LOCALITY    OF    ACTIONS.  147 

It  is  clearly  ac^ainst  our  interests  that  those  living  in  the  state  of 
Wisconsin  near  the  division  line  should  be  encouraj^ed  in  this 
class  of  litigation  liccause  our  laws  may  be  more  favorable  as  to 
the  rules  of  evidence,  or  for  any  other  cause,  and  thus  necessitate 
taxation  of  our  people  that  nonresidents  may  have  a  forum  to 
litigate  that  which  ought  to  be  and  is  a  local  action  in  the  state 
of  Wisconsin.  Our  citizens  have  no  such  right  in  the  courts  of 
Wisconsin.  Comity  should  be  reciprocal,  and  this  can  be  more 
properly  obtained  by  legislative  enactments  of  the  respective  states 
than  by  an  interj^relation  in  direct  conflict  with  the  almost  uni- 
versal judicial  decisions  elsewhere.  But  I  should  seriously  doubt 
the  wisdom  of  any  such  enactment.  It  might,  perhaps,  prevent  the 
miscarriage  of  justice  in  some  cases,  but  it  would  aid  such  mis- 
carriage in  many  instances. 

The  defendant,  like  many  other  railroad  corporations,  extends 
its  liric  from  other  state?  to  this,  and  owns  a  vast  amount  of  lands 
here.  It  may  allege  that  citizens  of  our  state  are  committing 
injuries  to  its  real  property  here,  and  if  such  a  person  owns  land 
in  Wisconsin,  or  shall  be  found  there,  it  could,  under  such  a  law, 
commence  a  suit  in  the  courts  of  Wisconsin,  and  thus  put  our 
citizens  to  the  trouble  and  expense  of  going  to  that  state  for  trial  ' 
of  a  case  which  in  all  fairness  should  be  tried  here.  Railroad 
companies  thus  situated  have  great  facilities  for  transporting  their 
witnesses  over  their  own  lines  without  expense  to  themselves, 
while  a  poor  man,  charged,  perhaps  unjustly,  with  a  trespass, 
must  travel  hundreds  of  miles  into  another  state  to  meet  his 
accusers,  or  suffer  judgment  by  default.  The  majority  opinion 
means  defeat  for  the  railroad  company  in  this  case,  but  it  would 
mean  victory  for  them  hereafter  if  an  alleged  trespasser  upon 
their  lands  in  Minnesota  is  caught  in  Wisconsin  and  made  to 
answer  m  its  courts,  if  such  a  law  should  prevail  there.  Now 
c'tizens  of  Wisconsin  will  have  an  unjust  advantage  over  citizens 
oi  Minnesota.  Again,  suppose  the  courts  of  California  sliould 
adopt  the  doctrine  of  the  majority  opinion,  and  one  of  our  citizens 
should  visit  that  state  for  pleasure,  health,  or  business,  and 
is  there  sued  by  some  one  claiming  that  lands  belonging  to  him 
situate  here  have  been  damaged  by  such  citizen  of  Minnesota, 
would  it  not  seem  a  miscarriage  of  justice  that  the  trial  in  such 
case  must  take  place  thousands  of  miles  away  from  the  man's 
home,  and  from  the  situs  of  the  property  alleged  to  have  been 
injured?  The  hardship  of  such  a  proceeding  would  seem  to  be 
intolerable,  and  I  cannot  give  my  assent  to  any  such  doctrme, 


148  PRIVATE    INTERNATIONAL    LAW. 

whatever  may  be  the  rule  qs  to  the  trial  of  actions  upon  voluntary 
contracts  between  parties ;  and  T  prefer  that  the  rvile  should  be 
that  for  injuries  to  real  property  the  jurisdiction  of  our- courts 
should  only  be  co-extensive  with  its  territorial  sovereignty. 

This  doctrine,  which  is  so  strongly  imbedded  in  the  common 
law  and  judicial  authorities  of  the  country,  is  further  adhered  to 
by  our  own  statute,  which  provides  that  actions  for  injuries  to 
real  property  shall  be  brought  in  the  county  where  the  subject 
of  the  action  is  situated,  and  prohibits  the  court  from  having 
jurisdiction  if  brought  in  any  other  county.  G.  S.  1894,  §  5183. 
Thus  we  have  a  legislative  recognition  of  the  doctrine  that  actions 
for  injuries  to  real  estate  are  local.  Tf  there  is  any  implication 
arising  from  legislative  enactments  as  to  the  jurisdiction  of  courts 
to  try  actions  for  injury  to  real  estate  elsewhere,  it  would  be 
against  the  contention  of  the  plaintiff.  The  statute  makes  no  dis- 
tinction between  trespass  to  lands  within  and  without  the  state. 
It  does  not  make  the  action  for  trespass  to  lands  outside  the  state 
transitory.  There  is  no  warrant  in  the  language  of  the  constitu- 
tion or  statute  which  justifies  the  majority  opinion,  and,  if  sound,. 
it  must  rest  upon  some  other  foundation  than  is  to  be  found  in 
the  letter  of  the  law.  It  is  a  rule  which  is  more  favorable  to  the 
plaintifif  than  the  defendant.  The  former  can  select  his  own 
forum ;  the  latter  is  helpless.  No  change  of  venue  can  be  granted, 
because  none  is  authorized. 

In  criminal  cases  the  doctrine  of  local  venue  applies.  One  of 
the  specifications  of  complaint  in  the  immortal  Declaration  of 
Independence  against  Great  Britain  was,  "For  transporting  us. 
beyond  seas  to  be  tried  for  pretended  offenses."  Our  constitution 
(article  i,  §  6)  provides  that:  'In  all  criminal  prosecutions  the 
accused  shall  enjoy  the  right  to  a  speedy  and  public  trial  by  an 
impartial  jury  of  the  county  or  district  wherein  the  crime  shall 
have  been  committed,  which  county  or  district  shall  have  been 
previously  ascertained  by  law."  No  one  pretends  but  that  this  is 
a  sound  and  reasonable  principle  of  law,  and  I  have  never  known 
of  its  being  assailed  as  tending  to  a  miscarriage  of  justice.  This 
constitutional  guaranty  applies  to  petty  offenses  wherever  a  small 
fine  might  be  imposed,  and  yet  wdiere,  perhaps,  all  the  property 
which  a  man  owns  might  be  at  stake,  he  can,  if  found  in  another 
state,  perhaps  thousands  of  miles  away  from  home  and  witnesses 
and  the  location  of  the  alleged  injured  property,  be  tried  civilly  in 
a  foreign  sovereignty.  Why  could  he  not  also  in  a  civil  action  be 
tried  in  China,  Russia,  England,  Spain,  Cuba,  or  Mexico,  if  found 


LOCALITY    OF    ACTIONS.  149 

there,  and  there  served  with  process,  if  the  doctrine  of  the  majority 
opinion  is  to  prevail  ?  In  the  case  of  A'/7t'^  z:  Howe,  57  Vt.  388, 
the  court  say:  "It  would  hardly  be  claimed  that  our  courts  had 
jurisdiction  over  a  crime  committed  in  another  state.  And  yet  the 
same  reasonings  that  supports  the  doctrine  of  local  venue  applies 
equally  to  crimes  and  real  actions." 

I  think  that  the  order  should  be  affirmed. ^^ 


"In  the  case  of  Madhaei  v.  Galitzin.  18  liq.  I..  R.  ^40,  where  one  for- 
eigner sued  another  foreigner  on  a  contract  relating  to  real  property  situate 
in  a  foreign  country,  the  court  said:  "A  foreigner  resident  abroad  cannot 
bring  another  foreigner  into  this  court  respecting  property  with  which  this 
court  has  nothing  to  do.  This  court  is  not  to  be  made  a  vehicle  for  settling 
disputes  arising  between  parties  resident  abroad."  Actions  for  damages 
for  injuries  to  land  must  be  brought  in  the  state  where  the  land  is  situated. 
Hozi'ard  v.  IngcrsoU,  23  Alu.  67s;  Chfrode  v.  Circuit  Judge,  79  Mich.  SJJ. 

In  an  action  for  the  recovery  of  damages  for  a  personal  injury,  the 
court,  in  Bwdick  v.  Freeman,  120  N.  Y.  420,  (1890)  said:  "The  courts  of 
this  state  may,  in  their  discretion,  entertain  jurisdiction  of  such  an  action 
between  citizens  of  an  other  state  actually  domiciled  therein  when  the 
action  was  begun  and  tried,  though  the  injury  was  committed  in  the  state 
of  their  residence  and  domicil." 

A  personal  action  for  battery  committed  in  a  foreign  country,  where 
the  parties  afterwards  came  into  this  jurisdiction,  may  be  maintained  in  our 
courts.  Dezcitt  z:  Buchanan,  5;  Barb.  (N.  V.)  31;' Roberts  v.  Dunsmuir, 
73  Cal.  203. 

The  courts  of  Te.xas  follow  the  doctrine  that  they  will  not  undertake 
to  adjudicate  rights  which  originated  in  another  state  or  country,  under 
statutes  materially  different  from  the  law  of  Texas  in  relation  to  the  same 
subject.  Especially  is  this  true  if  the  parties  have  access  to  their  state  or 
country.     Mexican  Natl.  Ry.  v.  Jackson,  89  Texas  107  (1896). 

In  Gardner  z:  Thomas,  14  Johnson  13 f,  the  question  was  whether  the 
court  would  take  cognizance  of  a  tort  committed  on  the  high  seas,  on  board 
of  a  foreign  vessel,  both  the  parties  being  subjects  or  citizens  of  the  country 
to  which  the  vessel  belonged.  The  court  said  :  "It  must  be  conceded  that 
the  law  of  nations  gives  complete  and  entire  jurisdiction  to  the  courts  of 
the  country  to  which  the  vessel  belongs,  but  not  exclusively.  It  is  exclusive 
only  as  it  respects  the  public  injury,  but  concurrent  with  the  tribunals  of 
other  nations,  as  to  the  private  remedy." 

It  is  discretioiiary  with  the  court  whether  it  will  take  jurisdiction,  and 
if  to  take  jurisdiction  will  break  up  the  voyage  of  the  vessel  and  cause  loss 
to  the  owners,  the  court  will  refuse  to  take  jurisdiction  and  leave  the 
parties  to  seek  redress  in  their  own  country  as  was  done  in  this  case. 


150  PRIVATE    INTERNATIONAL    LAW. 


PENAL  LAWS. 

HUNTINGTON  v.  ATTRILL,   1892. 
[146  U.  S.  657] 

1.  Penal   Law   Defined.  5-  Rule  of  Construction  Applied  to 

2.  Distinguished     From      Accumula-  Penal   Laws. 

lativc    Damages.  6.  Purpose  and  Scope  of  the    "Full 

3.  Extra-territorial    Effect  of  Laws.  Faith    and    Credit    Clause"    of 

4.  What   Personal   Disabilities   Im-  the  Constitution  of  the  United 

posed  bv  the  Law  of  a   State  States. 

are  Considered  Penal.  7.  Effect    of   the    "Full    Faith    and 

Credit   Clause." 

In  this  case  a  New  York  statute  made  the  officers  of  a  cor- 
poration, who  signed  and  recorded  false  certificates  of  the  amount 
of  its  captilal  stock,  liable  for  all  its  debts.  The  statute  was  vio- 
lated by  an  officer  of  a  certain  New  York  corporation,  and  a  judg- 
ment was  recovered  in  New  York  against  him  thereunder.  Action 
being  brought  upon  the  judgment  in  Maryland,  its  courts  held 
that  the  New  York  statute  was  a  penal  statute,  and  refused  to 
enforce  the  judgment.  On  appeal  to  the  Supreme  Court  of  the 
United  States,  under  the  "full  faith  and  credit"  clause  of  the 
federal  constitution,  Mr.  Justice  Gray  said: 

The  question  whether  due  faith  and  credit  were  thereby  de- 
nied to  the  judgment  rendered  in  another  State  is  a  Federal  ques- 
tion, of  which  this  court  has  jurisdiction  on  this  writ  of  error. 
Green  v.  Van  Buskirk,  5  Wall.  307,  311  ;  Crapo  v.  Kelly,  16  Wall. 
610.  619;  Dupasseur  v.  Rochcrcau,  21  Wall.  130,  134;  Crescent 
City  Co.  V.  Butchers'  Union,  120  U.  S.  146,  147;  Cole  v.  Cun- 
ningham, 133  LT.  S.  107;  Carpenter  v.  Strange,  141  U.  S.  87,  103. 

In  order  to  determine  this  question,  it  will  be  necessary,  in 
the  first  place,  to  consider  the  true  scope  ana  meaning  of  the  fun- 
damental maxim  of  international  law,  stated  by  Chief  Justice 
Marshall  in  the  fewest  possible  words :  "The  courts  of  no  country 
execute  the  penal  laws  of  another."  The  Antelope,  10  Wheat. 
66,  123.  In  interpreting  this  maxim,  there  is  danger  of  being 
misled  by  the  different  shades  of  meaning  allowed  to  the  word 
"penal"  in  our  language. 

In  the  municipal  law  of  England  and  America,  the  words 
"penal"  and  "penalty"  have  been  used  in  various  senses.  Strictly 
and  primarily,  they  denote  punishment,  whether  corporal  or  pe- 
cuniary, imposed  and  enforced  by  the  State,  for  a  crime  or  offense 
against  its  laws.     United  States  v.  Reisinger,  128  U.  S.  398,  402; 


PENAL    LAWS.  151 

United  States  v.  Chonteau,  102  U.  S.  603,  611.  But  they  are  also 
commonly  used  as  includinnf  any  extraordinary  liability  to  which 
the  law  subjects  a  wrongdoer  in  favor  of  the  person  wronged,  not 
limited  to  the  damages  suffered.  They  are  so  elastic  in  meaning 
as  even  to  be  familiarly  applied  to  cases  of  private  contracts, 
wholly  independent  of  statutes,  as  when  we  speak  of  the  "penal 
sum"  or  "penalty"  of  a  bond'.  In  the  words  of  Chief  Justice  Mar- 
shall :  "In  general,  a  sum  of  money  in  gross,  to  be  paid  for  the 
non-performance  of  an  agreement,  is  considered  as  a  penally,  the 
legal  operation  of  which  is  to  cover  the  damages  which  the  party, 
in  whose  favor  the  stipulation  is  made,  may  have  sustained  from 
the  breach  of  contract  by  the  opposite  party."  Taylor  v.  Sandi- 
ford,  7  Wheat.  13,  17. 

Penal  laws,  strictly  and  properly,  are  those  imposing  punish- 
ment for  an  offence  committed  against  the  State,  and  which,  by 
the  English  and  American  constitutions,  the  executive  of  the  State 
has  the  power  to  pardon.  Statutes  giving  a  private  action  again.st 
the  wrongdoer  are  sometimes  spoken  of  as  penal  in  their  nature, 
but  in  such  cases  it  has  been  pointed  out  that  neither  the  liability 
imposed  nor  the  remedy  given  is  strictly  penal. 

The  action  of  an  owner  of  property  against  the  hundred  to 
recover  damages  caused  by  a  mob  was  said  bv  Justices  Wille?  and 
Buller  to  be  "penal  against  the  hundred,  but  certainly  remedial  as 
to  the  sufferer."  Hyde  v.  Cogan,  2  Doug.  699.  705,  706.  A  stat- 
ute giving  the  right  to  recover  back  money  lost  at  gaming,  and, 
if  the  loser  does  not  sue  within  a  certain  time,  authorizing  a  qui 
iam  action  to  be  brought  by  any  other  person  for  threefold  the 
amount,  has  been  held  to  be  remedial  as  to  the  loser  though  penal 
as  regards  the  suit  by  a  common  mformer.  Bones  v.  Booth,  2  W. 
Bl.  1226  Brandon  v.  Pate,  2  H.  Bl.  308  ;  Grace  v.  M'Elroy,  i  Allen, 
563;  Read  v.  Steivart,  129  Mass.  407.  410:  Cole  1:  Groves,  134 
Mass.  471.  As  said  bv  Mr.  Justice  Ashhurst  in  the  King's  Bench, 
and  repeated  by  Mr.  Justice  Wilde  in  the  Supreme  Judicial  Court 
of  Massachusetts,  "it  has  been  held,  in  many  instances,  that  where 
a  statute  gives  accumulative  damages  to  the  party  grieved,  it  is 
not  a  penal  action."  li'oodgate  v.  Knatchbull,  2  T.  R.  148.  154, 
Read  v.  Chehnsford,  16  Pick.  128.  132.  Thus  a  statute  giving  to 
a  tenant,  ousted  without  notice,  double  the  yearly  value  of  the 
premises  against  the  landlord,  has  been  held  to  be  "not  like  a 
penal  law  where  a  pimishment  is  imposed  for  a  crime."  but  "rather 
as  a  remedial  than  a  penal  law."  because  "the  act  indeed  does  give 
a  oenalty,  but  it  is  10  the  party  grieved."     Lake  v.  Smith,  i  Bos. 


152  PRIVATi.    INTERNATIONAL    LAW. 

&  Pill.  (N.  R.)  174,  179,  180,  181  ;  IVilkinson  v.  Colley,  5  Burrow, 
2694,  2698.  So  in  an  action  given  by  a  statute  to  a  traveller  in- 
jured through  a  defect  in  a  highway,  for  double  damages  against 
the  town,  it  was  held  imnecessary  to  aver  that  the  facts  constituted 
an  offence,  or  to  conclude  against  the  form  of  the  statute,  because, 
as  Chief  Justice  Shaw  said :  "The  action  is  purely  remedial,  and 
has  none  of  the  characteristics  of  a  penal  prosecution.  All  dam- 
ages for  neglect  or  breach  of  duty  operate  to  a  certain  extent  as 
punishment ;  but  the  distinction  is  that  it  is  prosecuted  for  the 
purpose  of  punishment,  and  to  deter  others  from  offending  in  like 
manner.  Here  the  plaintiff  sets  out  the  liability  of  the  town  to 
repair,  and  an  injury  to  himself  from  a  failure  to  perform  that 
duty.  The  law  gives  him  enhanced  damages ;  but  still  they  are 
recoverable  to  his  own  use,  and  in  form  and  substance  the  suit 
calls  for  indemnity."  Rccd  z'.  Northficid,  13  Pick.  94,  100,  loi. 
'  The  test  whether  a  law  is  penal,  in  the  strict  and  primary 

sense,  is  whether  the  v/rong  sought  to  be  redressed  is  a  wrong  to 
the  public,  or  a  wrong  to  the  individual,  according  to  the  familiar 
classification  of  Blackstone :  "Wrongs  are  divisible  into  two  sorts 
or  species :  private  zvrongs  and  public  ztrongs.  The  former  are 
an  infringement  or  privation  of  the  private  or  civil  rights  belong- 
ing to  individuals,  considered  as  individuals ;  and  are  thereupon 
frequently  termed  civil  injuries;  the  latter  are  a  breach  and  viola- 
tion of  public  rights  and  duties,  which  affect  the  whole  commu- 
nity, considered  as  a  community ;  and  are  distinguished  by  the 
harsher  appellation  of  crimes  and  misdemeanors."     3  Bl.  Com.  2. 

Laws  have  no  force  of  themselves  beyond  the  jurisdiction  of 
the  State  which  enacts  them,  and  can  have  extra-territorial  effect 
only  by  the  comity  of  other  States.  The  general  rules  of  inter- 
national comity  upon  this  subject  were  well  summed  up,  before 
the  American  Revolution,  by  Chief  Justice  De  Grey,  as  reported 
by  5-ir  William  Blackstone :  "Crimes  are  in  their  nature  local,  and 
the  jurisdiction  of  crimes  is  local.  And  so  as  to  the  rights  of  real 
property,  the  subject  being  fixed  and  immovable.  But  personal 
injuries  are  of  a  transitory  nature,  and  seqmintur  forum  rei." 
Rafael  v.  Verelst,  2  W'.  B.  1055.  1058. 

Crimes  and  oft'ences  against  the  laws  of  any  State  can  only 
be  defined,  prosecuted  and  pardoned  by  the  sovereign  authority 
of  that  State;  and  the  authorities,  legislative,  executive  or  juaicial, 
of  other  States  take  no  action  with  regard  to  them,  except  by  way 
of  extradition  to  surrender  offenders  to  the  State  whose  laws  thev 
have  violated,  and  whose  peace  they  have  broken. 


PENAL    LAWS.  153 

Proceedings  iit  rem  to  determine  the  title  to  land  must  nec- 
essarily be  brought  in  the  State  within  whose  borders  the  land  is 
situated,  and  whose  courts  and  ofificcrs  alone  can  put  the  party  in 
possession.  Whether  actions  to  recover  pecuniary  damages  for 
trespasses  to  real  estate,  "of  which  the  causes,"  as  observed  by 
Mr.  Wcstlake  (Private  International  Law,  3d  ed.  p.  213),  "could 
not  have  occurred  elsewhere  than  where  they  did  occur,"  are 
purely  local,  or  may  be  brought  abroad,  depends  upon  the  ques- 
tion whether  they  are  viewed  as  relating  to  the  real  estate,  or  only 
as  afiforciing  a  personal  remedy.  By  the  common  law  of  FIngland, 
adopted  in  most  of  the  States  of  the  Union,  such  actions  are  re- 
garded as  local,  and  can  be  brought  only  where  the  land  is  sit- 
uated. Donlson  v.  Matthcxvs,  4  T.  R.  503  ;  McKcnna  v.  Pisk,  1 
How.  24T,  248.  But  in  some  States  and  countries  they  are  re- 
garded as  transitory,  like  other  personal  actions ;  and  whether  an 
action  for  trespass  to  land  in  one  State  can  be  brought  in  another 
State  depends  on  the  view  which  tlie  latter  State  takes  of  the 
nature  of  the  action.  For  instance.  Chief  Justice  Marshall  held 
that  an  action  coidd  not  be  maintained  in  \^irginia,  by  whose  law- 
it  was  local,  for  a  trespass  to  land  in  New^  Orleans.  Livingston  v. 
Jefferson,  1  Brock.  203.  On  the  other  hand,  an  action  for  a  tres- 
pass to  land  in  Illinois,  where  the  rule  of  the  common  law  pre- 
vailed, was  maintained  in  Louisiana,  Chief  Justice  Eustis  saying : 
■"The  present  action  is,  under  our  laws,  a  personal  action,  and  is 
not  distinguished  from  any  ordinary  civil  action  as  to  the  place 
or  tribunal  in  which  it  may  be  brought."  Holmes  v.  Barelay,  4 
La.  Ann.  63.  And  in  a  very  recent  English  case,  in  which  the 
judges  dififered  in  opinion  upon  the  question  whether,  since  local 
venue  has  been  abolished  in  England,  and  action  can  be  maintained 
there  for  a  trespass  to  land  in  a  foreign  country,  all  agreed  that 
this  question  depended  on  the  law  of  England.  Companhia  de 
Mocambique  v.  British  South  Africa  Co.  ( 1892)  2  O.  B.  358.  See 
also  Cragin  v.  Lovell,  88  N.  Y.  258;  Allin  v.  Connecticut  Rirer 
Lumber  Co.,  150  Mass.  560. 

In  order  to  maintain  an  action  for  an  injury  to  the  person  or 
to  moval:)le  property,  some  courts  have  held  that  the  wrong  must 
be  one  which  would  be  actionable  by  the  law  of  the  place  where 
the  redress  is  sought,  as  well  as  by  the  law  of  the  place  where  the 
wrong  was  done.  See,  for  example,  Thellalley,  L.  R.  2  P.  C. 
193,  204;  Phillips  V.  Eyre,  L.  R.  6  O.  B.  i,  28,  29;  The  M.  Mox- 
ham,  I  P.  D.  107,  iir  ;  Wooden  v.  IVestern  New  York  &  Penn- 
sylvania Railroad,  126  N.  Y.  10;  Ash  v.  Baltimore  6-  Ohio  Rail- 


154  PRIVATT^     INTERNATIONAL    LAW. 

road,  yz  Maryland  144.  But  such  is  not  the  law  of  this  court. 
By  our  law,  a  private  action  may  be  maintained  in  one  State,  if 
not  contrary  to  its  own  policy,  for  such  a  wrong  done  in  another 
and  actionable  there,  although  a  like  wrong  would  not  be  action- 
able in  the  State  where  the  suit  is  brought.  Smith  v.  Condry,  i 
How.  2S;  The  China,  7  Wall.  53,  64;  The  Scotland,  105  U.  S.  24, 
29.  Dennick  v.  Railroad  Co.,  103  U.  S.  11  ;  Texas  &  Pacific  Rail- 
way V.  Cox,  145  U.  S.  593. 

Upon  the  question  w^hat  are  to  be  considered  penal  laws  of 
one  country,  within  the  international  rule  which  forbids  such  laws 
to  be  enforced  in  any  other  country,  so  much  reliance  was  placed 
by  each  party  in  argument  upon  the  opinion  of  this  court  in  Wis- 
consin V.  Pelican  Ins.  Co.,  127  Li.  S.  265,  that  it  will  be  convenient 
to  quote  from  that  opinion  the  principal  proposition  there 
affirmed : 

"The  rule  that  the  courts  of  no  country  execute  the  penal 
laws  of  another  applies  not  only  to  prosecutions  and  sentences  for 
crimes  and  misdemeanors,  but  to  all  suits  in  favor  of  the  State 
for  the  recovery  of  pecuniary  penalties  for  any  violation  of  stat- 
utes for  the  protection  of  its  revenues,  or  other  municipal  laws, 
and  to  all  judgments  for  such  penalties."    p.  290. 

"The  appiication  of  the  rule  to  the  courts  of  the  several  States 
and  of  the  United  States  is  not  affected  by  the  provisions  of  the 
Constitution  and  of  the  act  of  Congress,  by  which  the  judgments 
of  the  courts  cf  any  State  are  to  have  such  faith  and  credit  given 
to  them  in  every  court  within  the  United  Slates  as  they  have  by 
law  or  usage  in  the  State  in  which  they  were  rendered."    p.  291. 

"The  essential  nature  and  real  foundation  of  a  cause  of  action 
are    not    changed    by    recovering    judgment    upon    it ;    and    the 
technical  rules,  which  regard  the  original  claim  as  merged  in  the 
judgment,  and  the  judguKMit  as  implying  a  promise  by  the  de- 
fendant to  pay  it,  do  not  preclude  a  court,  to  which  a  judgment 
is  presented  for  affirmative  action,  (while  it  cannot  go  behind  the 
judgment  for  the  purpose  of  examining  into  the  validity  of  the 
claim,)  from  ascertaining  whether  the  claim  is  really  one  of  such 
a  nature  tliat  the  court  is  authorized  to  enforce  it."     pp.  292,  293. 
"The  statute  of  Wisconsin,  under  which  the  State  recovered 
iu  one  of  her  own  courts  the  judgment  now  and  here  sued  on, 
was  in  the  strictest  sense  a  penal  statute,  imposing  a  penalty  upon 
any  insurance  company  of  another  State,  doing  business  in  the 
State  of  Wisconsin   without   having  aeposited   with  the   proper 
officer  of  the  State  a  full  statement  of  its  property  and  business 


PENAL    LAWS.  155 

during  the  previous  year.  The  cause  of  action  was  not  any  pri- 
vate injury,  but  solely  tiie  offence  committed  agjainst  the  State  by 
violating  her  law.  The  prosecution  was  in  the  name  of  the  State, 
and  the  whole  penalty,  when  recovered,  would  accrue  to  the 
State."    p.  299. 

Such  were  the  grounds  upon  which  it  was  adjudged  in  that 
case  that  tlus  court,  under  the  provision  of  the  Constitution  giving 
it  original  jurisdiction  of  actions  between  a  State  and  citizens  of 
another  State,  had  no  jurisdiction  of  an  action  by  a  State  upon  a 
judgment  recovered  by  it  in  one  of  its  own  courts  against  a  citi- 
zen or  a  corporation  of  another  State  for  a  pecuniary  penalty  for 
a  violation  of  its  numicipal  law. 

Upon  similar  grounds,  the  courts  of  a  State  cannot  be  com- 
pelled to  take  jurisdiction  of  a  suit  to  recover  a  like  penalty  for  a 
violation  of  a  law  of  the  United  .States.  Martin  z:  Hunter,  i 
Wheat.  304,  330,  337 ;  United  States  v.  Lathrop,  17  Johns.  4,  265 ; 
Daiefield  v.  fllinois,  2  Hill  (N.  Y.)  159,  169;  Jackson  v.  Rose,  2 
Virg.  Cas.  34;  Ely  v.  Feck,  7  Conn.  239;  Daz'ison  v.  Clianiplin, 
7  Conn.  244 ;  Hancy  t'.  Sharp,  i  Dana,  442  ;  State  v.  Pike,  15  !\.  H, 
83,  85  ;  Ward  i\  Jenkins,  10  Met.  583.  587 ;  i  Kent  Com.  402-404. 
The  only  ground  ever  suggested  for  maintaining  such  suits  in  a 
State  court  is  that  the  laws  of  the  United  States  are  in  effect  laws 
of  each  .State.  Ciaflin  v.  Housev.tan,  98  U.  S.  130,  137;  Piatt.  J., 
in  United  States  i\  Lathrop,  17  Johns.  22;  Ordivay  v.  Central 
Bank,  47  Maryland,  217.  But  in  Ckiflin  v.  Jiouscinan  the  point 
adjudged  was  that  an  assignee  under  the  bankrupt  law  of  the 
United  States  could  assert  in  a  state  court  the  title  vested  in  him 
by  the  assignment  in  bankruptcy;  and  Mr.  Justice  Bradley,  who 
delivered  the  opinion  in  that  case,  said  the  year  before,  when  sit- 
ting in  the  Circuit  Court,  and  speaking  of  a  prosecution  in  a  court 
of  the  State  of  Ceorgia  for  perjury  committed  in  that  State  in  tes- 
tifying before  a  commissioner  of  the  Circuit  Court  of  the  United 
States,  'Tt  would  be  a  manifest  incongruity  for  one  sovereignty 
to  punish  a  person  for  an  offence  committed  against  the  laws  of 
another  sovereignty."  Ex  parte  Bridges,  2  Woods,  428.  430. 
See  also  Loncy's  case,  134  U.  S.  372. 

Beyond  doubt,  (except  in  cases  removed  from  the  state  court 
in  obedience  to  an  express  act  of  Congress  in  order  to  protect 
rights  under  the  Constitution  and  laws  of  the  United  States),  a 
Circuit  Court  of  the  United  States  cannot  entertain  jurisdiction 
of  a  suit  in  behalf  of  die  State,  or  of  the  people  thereof,  to  recover 
a  penaltv  imposed  by  way  of  punishment  for  a  violation  of  a  stat- 


.156  PRIVATE    INTERNATIONAL    LAW. 

ute  of  the  State,  "the  courts  of  the  United  States,"  as  observed  bv 
Mr.  Justice  Catron,  delivering  a  judgment  of  this  court,  "having 
no  power  to  execute  the  penal  laws  of  the  individual  States." 
Givin  V.  Breedlovc,  2  How.  29,  36,  37 ;  Givin  v.  Barton,  6  How.  7 ; 
lozva  z'.  Chicago  &c.  Raikvay,  ^y  Fed.  Rep.  407 ;  Ferguson  v. 
Ross,  38  Fed.  Rep.  161  ;  Texas  v.  Day  Land  &  Cattle  Co.,  41  Fed, 
Rep.  228;  Dey  v.  Chicago  &c.  Raikvay,  45  Fed.  Rep.  82. 

For  the  purpose  of  extra-territorial  jurisdiction,  it  may  well 
be  that  actions  by  a  common  informer,  called,  as  Blackstone  says, 
"popular  actions,  because  they  are  given  to  the  people  in  general," 
to  recover  a  penalty  imposed  by  statute  for  an  offence  against  the 
law,  and  which  may  be  barred  by  a  pardon  granted  before  action 
brought,  may  stand  on  the  same  ground  as  suits  brought  for  such 
a  penalty  in  the  name  of  the  State  or  of  its  officers,  because  they 
are  equally  brought  to  enforce  the  criminal  law  of  the  State.  3  Bl. 
Com.  161,  162;  2  Bl.  Com.  437,  438;  Adams  v.  IVoods,  2  Crancli, 
336;  Givin  v.  Breedlovc,  above  cited;  United  States  v.  Connor, 
138  U.  S.  61,  66;  Bryant  v.  Ela,  Smith  y'N.  H.)  396.  And  per- 
sonal disabilities  imposed  by  the  law  of  a  State,  as  an  incident  or 
consequence  of  a  judicial  sentence  or  decree,  by  way  of  punish- 
ment of  an  offender,  and  not  for  the  benefit  of  any  other  person 
— such  as  attainder,  or  infamy,  or  incompetency  of  a  convict  to 
testify,  or  disqualification  of  the  guilty  party  to  a  cause  of  divorce 
for  adultery  to  marry  again — are  doubtless  strictly  penal,  and 
therefore  have  no  extra-territorial  operation.  Story  on  Conflict 
of  Laws,  §§  91,  92  ;  Dicey  on  Domicil,  162  ;  Folliott  v.  Ogden,  i  H. 
Bl.  123,  and  3  T.  R.  726;  Logan  v.  United  States,  144  U.  S.  263, 
303;  Dickson  V.  Dickson,  1  Yerger,  no;  Ponsford  v.  Johnson, 
2  Blatchford,  15;  Commonzvealth  v.  Lane,  113  Mass.  458,  471; 
Van  Voorhis  v.  Brintnall,  86  N.  Y.  18,  28,  29. 

The  question  whether  a  statute  of  one  State,  which  in  some 
.aspects  may  be  called  penal,  is  a  penal  law  in  the  international 
sense,  so  that  it  cannot  be  enforced  in  the  courts  of  another  State, 
depends  upon  the  question  whether  its  purpose  is  to  punish  an 
offence  against  the  public  justice  of  the  State,  or  to  afford  a  pri- 
vate remedy  to  a  person  injured  by  the  wrongful  act.  There 
could  be  no  better  illustration  of  this  than  tihe  decision  of  tliis 
court  in  Dennick  v.  Railroad  Co.,  103  U.  S.  11. 

In  that  case,  it  was  held  that,  by  virtue  of  a  statute  of  New 
Jersey  making  a  person  or  corporation,  whose  wrongful  act,  neg- 
lect or  default  should  cause  the  death  of  any  person,  liable  to  an 
.action  by  his  administrator,  for  the  benefit  of  his  widow  and  next 


PENAL    LAWS.  157 

of  kin,  to  iccover  damagvrs  for  the  pecuniary  injury  resulting  to 
them  froni  his  death,  such  an  action,  where  the  neglect  and  the 
death  took  place  in  New  Jersey,  might,  upon  general  principles  of 
law,  be  maintained  in  a  Circuit  Court  of  the  United  States  held 
in  the  State  of  New  York  by  an  administrator  of  the  deceased, 
appointed  in  that  State. 

Mr.  Justice  Miller,  in  delivering  judgment,  said:  "It  can 
scarcely  be  contended  that  the  act  belongs  to  the  class  of  criminal 
iaws  which  can  t)nly  be  enforced  by  the  courts  of  the  State  where 
the  offence  was  committed,  for  it  is,  though  a  statutory  remedy, 
a  civil  action  to  recover  damages  for  a  civil  injury.  It  is,  indeed, 
a  right  dependent  solely  on  the  statute  of  the  State;  but  zvlicii  the 
act  is  done  for  which  the  law  says  the  person  shall  be  liable,  and 
the  action  by  which  the  remedy  is  to  be  enforced  is  a  personal  and 
not  a  real  action,  and  is  of  that  character  which  the  law  recog- 
nizes as  transitory  and  not  local,  we  cannot  see  why  the  defendant 
may  not  be  held  liable  in  any  court  to  whose  jurisdiction  he  can 
be  subjected  by  personal  process  or  by  voluntary  appearance,  as 
was  the  case  here.  It  is  difficult  to  understand  how  the  nature  of 
the  remedy,  or  the  jurisdiction  of  the  courts  to  enforce  it,  is  in  any 
manner  dependent  on  the  question  whether  it  is  a  statutory  right 
or  a  conmion  law  right.  Wherever,  by  either  the  common  law  or 
the  statute  law  of  a  State,  a  right  of  action  has  become  fixed  and 
a  legal  liability  incurred,  tliat  liability  may  be  enforced  and  the 
right  of  action  pursued  in  any  court  which  has  jurisdiction  of  such 
matters  and  can  obtain  jurisdiction  of  the  parties.'      103  U.  S. 

Tha:  decision  is  important  as  establishing  two  points:  isl. 
The  court  considered  "criminal  laws,"  that  is  to  say,  laws  punish- 
ing crimes,  as  constituting  the  whole  class  of  penal  laws  which 
cannot  be  enforced  extra-territorially.  2d.  A  statute  of  a  State, 
manifestly  intended  to  protect  life,  and  to  impose  a  new  and  ex- 
traordinarv  civil  liability  upon  those  causing  death,  by  subjecting 
them  to  a  private  action  for  the  pecuniar)'  damages  thereby  result- 
ing to  the  family  of  the  deceased,  might  be  enforced  in  a  Circuit 
Court  of  the  Ignited  States  held  in  another  State,  without  regard 
to  the  question  whether  a  similar  liability  would  have  attached 
for  a  sit!iilar  cause  in  that  State.  The  decision  was  approved  and 
followed  at  the  last  term  in  Texas  &  Facitic  Railway  v.  Cox,  145 
U.  S.  593,.  605,  where  the  Chief  Justic<^.  speaking  fo--  the  whole 
court,  after  alluding  to  cases  recognizing  the  rule  where  the  laws 
of  both  jurisdictions  are  similar,  said:     "Tb.e  question,  howevei , 


158  PRIVATE     INTERNATIONAL    LAW. 

is  one  of  general  law,  and  we  regard  it  as  settled  in  Dennick  v. 
Railroad  Co." 

That  decisicr.  has  been  also  followed  in  the  courts  of  several 
States.  Hcrrick  v.  Minneapolis  &  St.  Lords  Railway,  31  Minne- 
sota, 11;  Chicago  &c.  Railroad  v.  Doyle,  60  Mississippi,  977; 
Knight  V.  Wets  Jersey  Railroad,  108  Penn.  St.  250;  Morris  v. 
Chicago  &c.  Railivay,  65  Iowa,  727;  Missouri  Pacific  Raihvay  v. 
Lczvis,  24  Nebraska,  848;  Higgins  v.  Central  Nezv  England  Rail- 
road, 155  Mass.,  176. 

In  the  case  last  cited,  a  statute  of  Connecticut  having  pro- 
vided that  all  actions  for  injuries  to  the  person,  including  those 
resulting:  instantaneouslv  or  otherwise  m  death,  should  survive ; 
and  that  for  an  injury  resulting  in  death  from  negligence  the  ex- 
ecutor or  administrator  of  the  deceased  might  maintain  an  action 
to  recover  damages  not  exceeding  $5000,  to  be  distributed  among 
his  widow  and  heirs  in  certain  proportions ;  it  was  held  that  such 
an  action  was  not  a  penal  action,  and  might  be  maintained  under 
that  statute  in  Massachusetts  by  an  administrator,  appointed 
there,  of  a  citizen  thereof,  who  had  been  instantly  killed  in  Con- 
necticut by  the  negligence  of  a  railroad  corporation ;  and  the  gen- 
eral principles  applicable  to  the  case  were  carefully  stated  as  fol- 
lows :  "Tliese  principles  require  that,  in  cases  of  other  than  penal 
actions,  the  foreign  law,  if  not  contrary  to  our  public  policy,  or 
to  abstract  justice  or  pure  morals,  or  calculated  to  injure  the  State 
or  its  citizens,  shall  be  recognized  and  enforced  here,  if  we  have 
jurisdiction  of  all  necessary  parties,  and  if  we  can  see  that,  con- 
sistently with  our  own  forms  of  procedure  and  law  of  trials,  we 
can  do  substantial  justice  between  the  parties.  If  the  foreign  law- 
is  a  penal  statute,  or  if  it  offends  our  own  pohcy,  or  is  repugnant 
to  justice  or  to  good  morals,  or  is  calculated  to  injure  this  State 
or  its  citizens,  or  if  we  have  not  jurisdiction  of  parties  who  must 
be  brought  in  to  enable  us  to  give  a  satisfactory  remedy,  or  if 
under  our  forms  of  procedure  an  action  here  cannot  give  a  sub- 
stantial remedy,  we  are  at  liberty  to  decline  jurisdiction."  155 
Mass.  180. 

The  provision  of  the  statute  of  New  York,  now  in  question, 
making  the  officers  of  a  corporation,  who  sign  and  record  a  false 
certificate  of  the  amount  of  its  capital  stock,  liable  for  all  its  debts, 
is  in  no  sense  a  criminal  or  quasi  criminal  law.  The  statute,  while 
it  enables  persons  complying  with  its  provisions  to  do  business  as 
a  corporation,  without  being  subject  to  the  liability  of  general 
partners,  takes  pains  to  secure  and  maintain  a  proper  corporate 


PENAL    LAWS.  159 

fund  for  the  payment  of  the  corporate  debts.  With  this  aim,  it 
makes  the  stockholders  inchvidiially  Hable  for  the  del)ts  of  the 
corporation  until  the  capital  stock  is  paid  in  and  a  certificate  of 
the  payment  made  by  the  officers;  and  makes  the  officers  liable 
for  any  false  and  material  representation  in  that  certificate.  The 
individual  liability  of  the  stockholders  takes  the  place  of  a  cor- 
porate fund,  until  tliat  fund  has  been  duly  created  ;  and  the  indi- 
vidual liability  of  the  officers  takes  the  place  of  the  fund,  in  case 
their  statement  that  it  has  been  duly  created  is  false.  If  the  offi- 
cers do  not  truly  state  and  record  the  facts  which  exempt  them 
from  liability,  they  are  made  liable  directly  to  every  creditor  of 
the  company,  who  by  reason  of  their  wrongful  acts  has  n(^t  the 
security,  for  the  payment  of  his  debt  out  of  the  corporate  prop- 
erty, on  which  he  had  a  right  to  rely.  As  the  statute  imposes  a 
burdensome  liability  on  the  officers  for  their  wrongful  act,  it  may 
well  be  considered  penal,  in  the  sense  that  it  should  be  strictly  con- 
strued. But  as  it  gives  a  civil  remedy,  at  the  private  suit  of  tlie 
creditor  only,  and  measured  by  the  amount  of  his  debt,  it  is  as  to 
him  clearly  remedial.  To  maintain  such  a  suit  is  not  to  adminis- 
ter a  punishment  imposed  upon  an  offender  against  the  State,  but 
simply  to  enforce  a  private  right  secured  under  its  laws  to  an  in- 
dividual. We  can  see  no  just  ground,  on  principle,  for  holding 
such  a  statute  to  l^e  a  penal  law,  in  the  sens.e  that  it  cannot  be  en- 
forced in  a  foreign  state  or  country. 

The  decisions  of  the  Court  of  Appeals  of  New  York,  so  far 
as  they  have  been  brought  to  our  notice,  fall  short  of  holding  that 
the  liability  imposed  upon  the  officers  of  the  corporation  by  such 
statute  is  a  punishment  or  penalty  which  cannot  be  enforced  in 
another  State. 

In  Garrison  v.  Hozce,  the  court  held  that  the  statute  was  so 
far  penal  that  it  nnist  be  construed  strictly,  and  therefore  the 
officers  could  not  be  charged  with  a  debt  of  the  corporation,  which 
was  neither  contracted  nor  existing  during  a  default  in  making 
the  report  required  by  the  statute;  and  Chief  Justice  Denio.  in 
delivering  judgment,  said:  "If  the  statute  were  simply  a  reme- 
dial one,  it  might  be  said  that  the  plaintiff's  case  was  within  its 
equity;  for  the  general  object  of  the  law  doubtless  was,  beside 
enforcing  the  duty  of  making  reports  for  the  benefit  of  all  con- 
cerned, to  enable  parties  proposing  to  deal  with  the  corporation 
to  see  whether  they  could  safely  do  so."  "But  the  provision  is 
highly  penal,  and  the  rules  of  law  do  not  permit  us  to  extend  it 


160  PRIVATi.     INTERNATIONAL    LAW. 

by  construction  to  cases  not  fairly  within  the  language."     17  N, 
Y.  458,  465,  466. 

In  Jones  V.  Barlozv,  it  was  accordingly  held  that  officers  were 
only  liable  for  debts  actually  due,  and  for  which  a  present  right 
of  action  exists  against  the  corporation;  and  the  court  said: 
"Although  the  obligation  is  wholly  statutory,  and  adjudged  to  be  a 
penalty,  it  is  in  substance,  as  it  is  in  form,  a  remedy  for  the  collec- 
lion  of  the  corporate  debts.  The  act  is  penal  as  agamst  the  de- 
faulting trustees,  but  is  remedial  in  favor  of  creditors.  The  lia- 
bility of  defaulting  trustees  is  measured  by  the  obligation  of  the 
company,  and  a  discharge  of  the  obligations  of  the  company,  or  a 
release  of  the  debt,  bars  the  action  against  the  trustees."  62  N.  Y. 
202,  205,  206. 

The  other  cases  in  that  court,  citea  in  the  opinion  of  the  Court 
of  Appeals  of  Maryland  in  the  present  case,  adjudged  only  the 
following  points :  Within  the  meaning  of  a  statute  of  limitations- 
applicable  to  private  actions  only,  the  action  against  an  officer  is- 
not  "upon  a  liability  created  by  statute,  other  than  a  penalty  or 
forfeiture,"  which  would  be  barred  in  six  years,  but  is  barred  in 
three  years  as  "an  action  upon  a  statute  for  a  penalty  or  forfeiture 
where  action  is  given  to  the  party  aggrieved,"  because  the  pro- 
visions in  question,  said  the  court,  "impose  a  penalty,  or  a  liability 
in  that  nature."  Merchants'  Bank  v.  Bliss,  35  N.  Y.  412,  417.. 
A  count  against  a  person  as  an  officer  for  not  filing  a  report  can- 
not be  joined  with  one  against  him  as  a  stockholder  for  debts  con- 
tracted before  a  report  is  filed,  that  being  "an  action  on  contract."' 
Wiles  v.  Snydavi,  64  N.  Y.  173,  176.  The  action  against  an  officer 
is  an  action  ex  delicto,  and  therefore  does  not  survive  against 
his  personal  representatives.    Stokes  v.  Stickncy,  96  N.  Y.  323. 

In  a  later  case  than  any  of  these,  the  court,  in  affirming  the 
very  judgment  now  sued  on,  and  adjudging  the  statute  of  1875 
to  be  constitutional  and  valid,  said  that  "while  liability  within  the 
provision  in  question  is  in  some  sense  penal  in  its  character,  it 
may  have  been  intended  for  the  protection  of  creditors  of  corpora- 
tions created  pursuant  to  that  statute."  Huntington  v.  Attrill, 
118  N.  Y.  365,  378.  And  where  such  an  action  against  an  officer 
went  to  judgment  before  the  death  of  either  party,  it  was  decided 
that  "the  original  wrong  M'as  merged  in  the  judgment,  and  that 
thus  became  property  with  all  the  attributes  of  a  judgment  in  an 
action  ex  contractu ;"  and  that  if,  after  a  reversal  of  judgment  for 
the  plaintiff,  both  parties  died,  the  ,jlaintifif's  representatives 
might  maintain  an  appeal   from  the  judgment  of  reversal,  and 


PENAL    LAWS.  161 

have  the  defendant's  representatives  summoned  in.  Carr  v. 
Rischcr,  119  N.  Y.  117,  124. 

We  do  not  refer  to  these  decisions  as  evidence  in  this  case 
ot  the  law  of  New  York,  because  in  the  courts  of  Maryland  that 
law  could  only  be  proved  as  a  fact,  and  was  hardly  open  to  proof 
on  the  demurrer,  and,  if  not  proved  in  those  courts,  could  not  be 
taken  judicial  notice  of  by  this  court  on  this  writ  of  error.  Han- 
Icy  V.  Donoghne,  116  U.  S.  i  ;  Chicago  &  Alton  Railroad  v.  Wig- 
gins Perry,  119  U.  S.  615;  Wermvag  v.  Pazvling,  5  Gill  &  Jolms. 
500,  508;  Coatcs  v.  Mackey,  56  Maryland,  416,  419.  Nor,  for 
reasons  to  be  stated  presently,  could  those  decisions,  in  any  view, 
be  ret^arded  as  concluding-  the  courts  of  Maryland,  or  this  court 
upon  the  question  whether  this  statute  is  a  penal  law  in  the  inter- 
national sense.  But  they  are  entitled  to  great  consideration,  be- 
cause made  by  a  court  of  high  authority,  construing  the  terms  of 
a  statute  with  which  it  was  peculiarly  familiar;  and  it  is  satisfac- 
tory to  Hnd  no  adjudication  of  that  court  inconsistent  with  the 
views  which  we  take  of  the  liability  in  question. 

That  court  and  sotne  others,  indeed,  have  held  that  the  lia- 
bility of  officers  imder  such  a  statute  is  so  far  in  the  nature  of  a 
penalty,  that  the  creditors  of  the  corporation  have  no  vested  right 
therein,  which  cannot  l>e  taken  away  by  a  repeal  of  the  statute 
before  judgment  in  an  action  brought  thereon.  Victory  Co.  v. 
BeccJicr,  97  N.  Y.  651,  and  26  Hun,  48 ;  Union  Iron  Co.  v.  Fierce, 
4  Bissell,  327;  Brcilnng  v.  Lindaner,  37  Michigan,  217,  230; 
Gregory  v.  German  Bank,  3  Colorado,  332.  But  whether  that  is 
so,  or  whether,  within  the  decision  of  this  court  Haivthrone  v. 
Calcf,  2  Wall.  10,  23,  such  a  repeal  so  afifects  the  security  which 
the  creditor  had  when  his  debt  w-as  contracted,  as  to  impair  the 
obligation  of  his  contract  with  the  corporation,  is  aside  from  the 
question  new  before  us. 

It  is  true  that  the  courts  of  some  States,  including  Maryland, 
have  declined  to  enforce  a  similar  liability  imposed  by  the  statute 
of  another  State.  But,  in  each  of  those  cases,  it  appears  to  have 
been  assumed  to  be  a  sufficient  ground  for  that  conclusion,  that 
the  liability  was  not  founded  in  contract,  but  was  in  the  nature  of 
a  penalty  imposed  by  statute ;  and  no  reasons  were  given  for  con- 
sidering the  statute  a  penal  law  in  the  strict,  primary  and  inter- 
national sense.  Dcrrickson  v.  Smith,  3  Dutcher,  (27  N.  J.  Law), 
166;  Halscy  v.  .McLean,  12  Allen,  438;  First  National  Bank  v. 
Price,  33  Maryland,  487. 

It  is  also  true  that  in  Steam  Engine  Co.  v.  Hubbard,  loi  U. 
II 


162  PRIVATE     INTERNATIONAL    LAW. 

S.  i88,  192,  Mr.  Justice  Clifford  referred  to  those  cases  by  way 
of  argument.  But  in  that  case,  as  well  as  in  Chose  v.  Curtis,  113 
U.  S.  452,  the  only  point  adjudged  was  that  such  statutes  were 
so  far  penal  that  they  must  be  construed  strictly ;  and  in  both 
cases  jurisdiction  was  assumed  by  the  Circuit  Court  of  the  United 
States,  and  not  doubted  by  this  court,  which  could  hardly  have 
been  if  the  statute  had  been  deemed  penal  within  the  maxim  of 
international  law.  In  Flash  v.  Conn,  109  U.  S.  371,  the  liability 
sought  to  be  enforced  under  the  statute  of  New  York  was  the  lia- 
bility of  a  stockholder  arising  upon  contract ;  and  no  question  was 
presented  as  to  the  nature  of  the  liability  of  officers. 

But  in  Hornor  v.  Ilcnning,  93  U.  S.  228,  this  court  declined 
to  consider  a  similar  liability  of  officers  of  a  corporation  in  the 
District  of  Columbia  as  a  penalty.  See  also  Ned  v.  Moultrie,  12 
Georgia,  104;  Cady  v.  Sanford,  53  Vermont,  632,  639,  640;  Nick- 
erson  v.  Wheeler,  118  Mass.  295,  298;  Post  v.  Toledo  &c.  Rail- 
road,J44  Mass.  341,  345;  IVoolverton  v.  Taylor,  132  Illinois,  197; 
Morawetz  on  Corporations  (2d  ed.)  §  908. 

The  case  of  Missouri  Pacific  Railway  v.  Humes,  115  U.  S. 
512,  on  which  the  defendant  much  relied,  related  only  to  the 
authority  of  the  legislature  of  a  State  to  compel  railroad  corpora- 
tions, neglecting  to  provide  fences  and  cattle-guards  on  the  lines 
of  their  roads,  to  pay  double  damages  to  the  owners  of  cattle  in- 
jured by  reason  of  the  neglect ;  and  no  question  of  the  jurisdiction 
of  the  courts  of  another  State  to  maintain  an  action  for  such  dam- 
ages was  involved  in  the  case,  suggested  by  counsel,  or  in  the 
mind  of  the  court. 

The  true  limits  of  the  international  rule  are  well  stated  in  the 
decision  of  the  Judicial  Committee  of  the  Privy  Council  of  Eng- 
land, upon  an  appeal  from  Canada,  in  an  action  brought  by  the 
present  plaintiff  against  Attrill  in  the  Province  of  Ontario  upon 
the  judgment  to  enforce  which  the  present  suit  was  brought. 
The  Canadian  judges,  having  in  evidence  before  them  some  of  the 
cases  in  the  Court  of  Appeals  of  New  York,  above  referred  to,  as 
well  as  the  testimony  of  a  well-known  lawyer  of  New  Y'ork  that 
such  statutes  were,  and  had  been  held  by  that  court  to  be,  strictly 
penal  and  punitive,  differed  in  opinion  upon  the  question  whetlier 
the  statute  of  New  York  was  a  penal  law  which  could  not  be  en- 
forced in  another  country,  as  well  as  upon  the  question  whether 
the  view  taken  by  the  courts  of  New  Vork  should  be  conclusive 
upon  foreign  courts,  and  finally  gave  judgment  for  the  defendant. 
Huntington  v.  Attrill,  17  Ontario,  245,  and  18  Ontario  App.  136. 


PENAL    LAWS.  163 

In  the  Privy  Council,  Lord  Watson,  speaking  for  Lord  Chan- 
cellor Halsbury  and  ether  judges,  as  well  as  for  himself,  delivered 
an  opinion  in  favor  of  reversing  the  judgment  below,  and  enter- 
ing a  decree  for  the  appellant,  upon  the  ground  that  the  action 
"was  not,  in  the  sense  of  international  law,  penal,  or,  in  f)th'.M- 
words,  an  action  on  belialf  of  the  government  or  community  of 
the  Slate  of  New  York  for  punishment  of  an  offence  against  their 
municipal  law."  The  fact  that  that  opinion  has  not  been  found 
in  any  series  of  reports  readily  accessible  in  this  country,  but  oniy 
in  8  Times  Law  Reports,  341,  affords  special  reasons  for  quoting 


some  passages. 


"The  rule"  of  international  law,  said  Lord  Watson,  "had  its 
foundation  in  the  well  recognized  principle  that  crimes,  including 
in  that  term  all  breaches  of  public  law  punishable  by  pecuniary 
mulct  or  otlierwise,  at  the  mstance  of  the  state  government,  or  of 
some  one  representing  the  public,  were  local  in  this  sense,  that 
they  were  only  cognizable  and  punishable  in  the  country  where 
they  were  committed.  Accordingly  no  proceeding,  even  in  the 
shape  of  a  civil  suit,  wdiich  had  for  its  object  the  enforcement  by 
the  State,  whether  directly  or  indirectly,  of  punishment  imposed 
for  such  breaches  by  the  lex  loci,  ought  to  be  admitted  in  the 
courts  of  any  other  country.  In  its  ordinary  acceptation,  the 
word  'penal'  might  embrace  penalties  for  infractions  of  general 
law,  which  did  not  constitute  offences  against  the  State ;  it  might, 
for  many  legal  purposes,  be  applied  with  perfect  propriety  to 
penalties  created  by  contract ;  and  it,  therefore,  when  taken  by 
itself,  failed  to  mark  that  distinction  between  civil  rights  and  crim- 
inal wrongs,  which  was  the  very  essence  of  the  international  rule." 

After  observing  that,  in  the  opinion  of  the  Judicial  Commit- 
tee, the  first  passage  above  quoted  from  IVisconsin  v.  Pelican 
Ins.  Co.,  i2j  U.  S.  265,  290.  "disclosed  the  proper  test  for  ascer- 
taining whether  an  action  was  penal  within  the  meaning  of  the 
rule,"  he  added :  "A  proceeding,  in  order  to  come  within  the 
scope  of  the  rule,  m.ust  be  in  the  nature  of  a  suit  in  favor  of  the 
State  whose  law  had  been  infringed.  All  the  provisions  of  mu- 
nicipal statutes  for  the  regulation  of  trade  and  trading  companies 
were  presumably  enacted  in  the  interest  and  for  the  benefit  of  the 
community  at  large ;  and  persons  who  violated  those  provisions 
were,  in  a  certain  sense,  offenders  against  the  state  law  as  well  as 
against  individuals  who  might  be  injured  by  their  misconduct. 
But  foreign  tribunals  did  not  regard  those  violations  of  statute 
law  as  offences  against  the  State,  unless  their  vindication  rested 


164  PRIVATE     INTERNATIONAL    LAW. 

with  the  State  itself  or  with  the  Community  which  it  represented. 
Penalties  might  be  attached  to  them,  but  that  circumstance  would 
not  bring-  them  within  the  rule,  except  in  cases  where  those  pen- 
alties were  recoverable  at  the  instance  of  the  State,  or  of  an  offi- 
cial duly  authorized  to  prosecute  on  its  behalf,  or  of  a  member  of 
the  public  in  the  character  of  a  common  informer.  An  action  by 
the  latter  was  regarded  as  an  actio  papillaris  pursued,  not  in  his 
nidividual  interest,  but  in  the  interest  of  the  whole  community." 

He  had  already,  in  an  earlier  part  of  the  opinion,  observed : 
"1  heir  lordships  could  not  assent  to  the  proposition  that  in  con- 
sidering whether  the  present  action  was  penal  in  such  sense  as  to 
oust  their  jurisdiction,  the  courts  of  Ontario  were  bound  to  pay 
absolute  deference  to  any  interpretation  which  might  have  been 
put  upon  the  statute  of  1875  in  the  State  of  New  York.  They 
had  to  construe  and  apply  an  international  rule,  which  was  a  mat- 
ter of  law  entirely  within  the  cognizance  of  the  foreign  court 
whose  jurisdiction  was  invoked.  Judicial  decisions  in  the  State 
where  the  cause  of  action  arose  were  not  precedents  which  must 
be  followed,  although  the  reasoning  upon  which  they  were 
founded  must  always  receive  careful  consideration  and  might  be 
conclusive.  The  court  appealed  to  must  determine  for  itself,  in 
the  first  place,  the  substance  of  the  right  sought  to  be  enforced, 
and,  in  the  second  place,  whether  its  enforcement  would,  either 
directly  or  indirectly,  involve  the  execution  of  the  penal  law  of 
another  State.  Were  any  other  principle  to  guide  its  decision,  a 
court  might  find  itself  in  the  position  of  giving  efifect  in  one  case,, 
and  denying  effect  in  another,  to  suits  of  the  same  character,  in 
consequence  of  the  causes  of  action  having  arisen  in  difFerenc 
countries ;  or  in  the  predicament  or  being  constrained  to  give 
effect  to  laws  which  were,  in  its  own  judgment,  strictly  penal." 

In  this  view  that  the  question  is  not  one  of  local,  but  of  inter- 
national law,  we  fully  concur.  The  test  is  not  by  what  name  the 
statute  is  called  by  the  legislature  or  the  courts  of  the  State  in 
which  it  was  pas-^ed,  but  whether  it  appears  to  the  tribunal  which 
is  called  upon  to  enforce  it  to  be,  in  its  essential  character  and 
effect,  a  punishment  of  an  offence  against  the  public,  or  a  grant 
of  a  civil  right  to  a  private  person. 

In  this  country,  the  question  of  international  law  must  be  de- 
termined in  the  first  instance  by  the  court,  state  or  national,  in 
which  the  suit  is  brought.  If  the  suit  is  brought  in  a  Circuit 
Court  of  the  United  States,  it  is  one  of  those  questions  of  general 
jurisprudence   which  that   court   must   decide    for   itself,    uncon- 


PENAL    LAWS.  165 

trolled  by  local  decisions.  Burgess  v.  Seliguian,  107  U.  S.  20, 
:^^;  Texas  &  Pacific  Railway  v.  Cox^  145  U.  S.  593,  605,  above 
cited.  If  a  suit  on  the  orig-inal  liability  under  the  statute  of  one 
State  is  brought  in  a  court  of  another  State,  the  Constitution  and 
laws  of  the  United  States  have  not  authorized  its  decision  upon 
such  a  question  to  be  reviewed  by  this  court.  Nezv  York  Ins.  Co. 
V.  Hendren,  92  U.  S.  286;  Roth  v.  Ehuian,  107  U.  S.  319.  But 
if  the  original  liability  has  passed  into  judgment  in  one  State,  the 
courts  of  another  State,  when  ask-ed  to  enforce  it,  are  bound  by 
the  Constitution  and  laws  of  the  United  States  to  give  full  faith 
and  credit  to  that  judgment,  and  if  they  do  not,  their  decision,  as 
said  at  the  outset  of  this  opinion,  may  be  reviewed  and  reversed 
by  this  court  on  writ  of  error.  The  essential  nature  and  real 
foundation  of  a  cause  of  action,  indeed,  are  not  changed  by  re- 
covering judgment  upon  it.  This  was  directly  adjudged  in  Wis- 
cojisiii  V.  Pelican  Ins.  Co.,  above  cited.  The  difference  is  only  in 
the  appellate  iurisdiction  of  this  court  in  the  one  case  or  in  the 
other. 

If  a  suit  to  enforce  judgment  rendered  in  one  State,  and 
which  has  not  changed  the  essential  nature  of  the  liability,  is 
brought  in  the  courts  of  another  State,  this  court,  in  order  to  de- 
termine, on  writ  of  error,  whether  the  highest  court  of  the  latter 
State  has  given  full  faith  and  credit  to  the  judgment,  must  deter- 
mine for  itself  whether  the  original  cause  of  action  is  penal  in  the 
international  sense.  The  case,  in  this  regard,  is  analogous  to  one 
arising  under  the  clause  of  the  Constitution  which  forbids  a  State 
to  pass  any  law  impairing  the  obligation  of  contracts,  in  which,  if 
the  highest  court  of  a  state  decides  nothing  but  the  original  con- 
struction and  obligation  of  a  contract,  this  court  has  no  jurisdic- 
tion to  review  its  decision;  but  if  the  state  court  gives  effect  to  a 
subsequent  law,  which  is  impugned  as  impairing  the  obligation  of 
a  contract,  this  court  has  power,  in  order  to  determine  whether 
any  contract  has  been  impaired,  to  decide  for  itself  what  the  true 
construction  of  the  contract  is.  Nezv  Orlca)is  IVatcnvorks  v. 
Louisiana  Sugar  Co.,  125  \].  S.  18,  38.  So  if  the  state  court,  in 
an  action  to  enforce  the  original  liability  under  the  law  of  another 
State,  passes  upon  the  nature  of  that  liability  and  nothing  else, 
this  court  cannot  review  its  decision  ;  liut  if  the  state  court  declines 
to  give  full  faith  and  credit  to  a  judgment  of  another  State,  be- 
cause of  its  opinion  as  to  the  nature  of  the  cause  of  action  on 
which  the  judgment  was  recovered,  this  court,  in  determining 


166  PRIVATE     INTERNATIONAL    LAW. 

whether  full  faith  and  credit  have  been  given  to  that  judgment, 
must  decide  for  itself  the  nature  of  the  original  liability. 

Whether  the  Court  of  Appeals  of  Maryland  gave  full  faith 
and  credit  to  the  judgment  recovered  by  this  plaintiff  in  New 
York  depends  upon  tlie  true  construction  of  the  provisions  of  the 
Constitution  and  of  the  act  of  Congress  upon  that  subject. 

The  provision  of  the  Constitution  is  as  follows:  "Full  faith 
and  credit  shall  be  given  in  each  State  \o  tlie  public  acts,  records 
and  judicial  proceedings  of  every  other  State.  And  the  Congress 
may  by  general  laws  prescribe  the  manner  in  which  such  acts, 
records  and  proceedings  shall  be  proved,  and  the  effect  thereof." 
Art.  4,  sect.  i. 

This  clause  of  the  Constitution,  like  the  less  perfect  provision 
on  the  subject  in  the  Articles  of  Confederation,  as  observed  by 
Mr.  Justice  Story,  "was  intended  to  give  the  same  conclusive 
eff"ect  to  judgments  of  all  the  States,  so  as  to  promote  unifotmity, 
as  well  as  certainty,  in  the  rule  among  them ;"  and  had  three  dis- 
tinct objects:  first,  to  declare,  and  by  its  own  force  establish,  that 
full  faith  and  credit  should  be  given  to  the  judgment  of  every 
other  State ;  second,  to  authorize  Congress  to  prescribe  the  m.an- 
ner  of  authenticating  them ;  and  third,  to  authorize  Congress  to 
prescribe  their  effect  when  so  authenticated.  Story  on  the  Con- 
stitution, §§  1307,  130S. 

Congress,  in  the  exercise  of  the  power  so  conferred,  besides 
prescribing  the  manner  in  which  the  records  and  judicial  proceed- 
ings of  any  State  may  be  authenticated,  has  defined  the  effect 
thereof,  by  enacting  that  "the  said  records  and  judicial  proceed- 
ings, so  authenticated,  shall  have  such  faith  and  credit  given  to 
them  in  every  court  within  the  United  States,  as  they  have  by  law 
or  usage  in  the  courts  of  the  State  from  which  they  are  taken." 
Rev.  Stat.  §  905,  re-enacting  Act  of  May  26,  1790,  c.  11,  i  Stat. 

722. 

These  provisions  of  the  Constitution  and  laws  of  the  United 
States  are  necessarily  to  be  read  in  the  light  of  some  estabiishea 
principles,  which  they  were  not  intended  to  overthrow.  They  give 
no  effect  to  judgments  of  a  court  which  had  no  jurisdiction  of 
the  subject-matter  or  of  the  parties.  D'Arcy  v.  Kctchuni,  11 
How.  165;  Thompson  v.  IVhitinaii,  18  Wall.  457.  And  they  con- 
fer no  new  jurisdiction  on  the  courts  of  any  State  ;  and  therefore 
do  not  authorize  them  to  take  jurisdiction  of  a  suit  or  prosecution 
of  such  a  penal  nature,  that  it  cannot,  on  settled  rules  of  public 
and  international  law,  be  entertained  by  the  judiciary  of  any  other 


PENAL    LAWS. 


167 


State  than  that  in  which  the  penalty  was  incurred.     Wisconsin  v, 
Fclican  Ins.  Co.,  above  cited. 

Nor  do  these  provisions  put  the  judgments  of  other  States 
upon  the  footing  of  domestic  judgments,  to  be  enforced  by  execu- 
tion ;  but  they  leave  the  manner  in  which  they  may  be  enforced  to 
the  law  of  the  State  in  which  they  are  sued  on,  pleaded,  or  offered 
in  evidence.  McElmoylc  v.  Cohen,  13  Pet.  312,  325.  But  when 
duly  pleaded  and  proved  in  a  court  of  that  State,  they  have  the 
effect  of  being  not  merely  prima  facie  evidence,  but  conclusive 
proof,  of  the  rights  thereby  adjudicated ;  and  a  refusal  to  give 
them  the  force  and  effect,  in  this  respect,  which  they  had  in  the 
State  in  which  they  were  rendered,  denies  to  the  party  a  right 
secured  to  him  by  the  Constitution  and  laws  of  the  United  States. 
Christmas  v.  Riisseli  :;  Wall.  2go;  Green  v.  Van  Biiskirk,  5  Wall. 
307,  and  7  Wall.  139;  Insurance  Co.  v.  Harris,  97  U.  S.  331,  336; 
Crescent  City  Co.  v.  Butchers'  Union,  120  U.  S.  141.  146,  147; 
Carpenter  v.  Strange,  141  U.  S.  87. 

The  judgment  rendered  by  a  court  of  the  State  of  New  York, 
now  m  question,  is  not  impugned  for  any  want  of  jurisdiction  in 
that  court.  The  statute  under  which  that  judgment  was  recov- 
ered was  not,  for  the  reasons  already  stated  at  length,  a  penal  law 
in  the  international  sense.  The  faith  and  credit,  force  and  effect, 
which  that  judgment  had  by  law  and  usage  in  New  York  was  to 
be  conclusive  evidence  of  a  direct  civil  liability  from  the  individual 
defendant  to  the  individual  plaintiff  for  a  certain  sum  of  money, 
and  a  debt  of  record,  on  which  an  action  would  lie,  as  on  any 
other  civil  judgment  inter  partes.  The  Court  of  Appeals  of  Mary- 
land, therefore,  in  deciding  this  case  against  the  plaintiff',  upon 
the  ground  that  the  judgment  was  not  one  which  it  was  bound 
in  any  manner  to  enforce,  denied  to  the  judgment  the  full  faith, 
credit  and  effect  to  wliich  it  was  entitled  under  the  Constitution 
and  laws  of  the  United  States. 

Judgment  reversed,  and  case  remanded  to  the  Court  of  Ap- 
peals of  the  State  of  Maryland  for  further  proceedings  not 
inconsistent  zvith  the  opinion  of  this  court}- 


'■Penal  Laws.— Whether  a  liability  is  penal  or  not  must  be  determined 
by  the  state  in  which  enforcement  is  sought.  The  courts  differ  as  to  the 
meaning  of  penal  law.  In  the  crse  of  Adams  z:  Ry.  Co..  67  I't.  76,  (1S94), 
an  action  brought  in  Vermont  to  recover  for  a  death  caused  in  Massa- 
chusetts, under  the  statute  of  that  state  which  provided  for  a  recovery  of 
damages  not  exceeding  $5,000  nor  less  than  $500  to  be  assessed  with 
reference  to  the  degi  ee  of  culpability  of  the  corporation,  the  court  said: 
"A  statute  giving  a  right  of  recovery  is  often  penal  as  to  one  party  and 


168  PRIVATE    INTERNATIONAL    LAW. 

remedial  as  to  the  other.  It  is  said  that  in  such  cases  the  true  test  is 
whether  the  main  purpose  of  the  statute  is  the  giving  of  compensation  for 
an  injury  sustained,  or  the  infliction  of  a  punisliment  upon  the  wrongdoer. 
We  think  an  application  of  this  test  to  the  provision  in  question  shows  it 
to  be  penal.  The  foundation  of  the  action  is  the  loss  of  a  life  by  reason 
of  the  defendant's  negligence.  There  was  no  right  of  action  at  common 
law.  This  statute  gives  a  right  of  action  to  the  personal  representative  of 
the  deceased,  for  the  benefit  of  the  widow  and  children,  or  widow,  or  next 
of  kin.  If  ihe  right  of  recovery  is  established,  the  damages  are  to  be  five 
hundred  dollars  in  any  event.  Any  recovery  beyond  this  is  to  be  assessed 
with  reference  to  the  degree  of  the  defendant's  culpability.  It  appears, 
then,  that  whatever  the  damages  may  be,  or  whomsoever  the  person  for 
whose  benefit  they  are  recovered,  they  are  not  given  with  reference  to  the 
loss  sustained.  If  the  recovery  could  be  had  only  for  the  benefit  of  widow 
and  children  the  statute  might  perhaps  more  easily  be  looked  upon  as 
remedial.  But  the  recovery  may  be  for  the  benefit  of  distant  relatives  who 
had  no  claim  upon  the  deceased  for  support.  *  *  *  The  wrongdoer  is 
to  be  punished  whether  the  person  receiving  the  amount  of  the  recovery 
has  sustained  a  substantial  injury  or  not."  This  decision  was  approved 
by  the  Supreme  Court  of  Kansas  in  the  case  of  Dale  v.  Ry.  Co.,  S7  Kans. 
60 1,  {1897). 

In  Commonzi'ealth  v.  Green,  17  Mass.  373,  {1822),  the  court  held  that  a 
person  rendered  infamous  in  one  state  is  not  infamous  in  another  state 
and  may  testify  as  a  witness  in  the  latter  state.  It  is  a  rule,  quotes  the 
court,  that  a  sentence  which  attacks  the  honor,  rights,  or  property  of  a 
criminal,  cannot  e.vtend  beyond  the  limits  of  the  territory  of  the  sovereign 
who  pronounced  it.  To  enforce  such  a  foreign  law  would  be  to  punish  the 
second  time  for  the  offense,  and,  in  somtf  measure,  to  carry  it  into  execu- 
tion. See  Sims  v.  Sims,  73  N.  Y.  466,  {1878);  Contra.  State  v.  Foley,  15 
Nev.  64,  (1S80). 

Foreign  obligation  to  support  a  bastard  child  not  enforced,  Graham  v. 
Monsergh,  22  Vt.  343,  {1830).  To  forfeit  treble  damages  for  usury  not 
enforced,  Blaine  v.  Curtis,  39,  Vt.  120,  (1887).  Foreign  obligation  to  sup- 
port a  son-in-law  not  enforced,  De  Brimont  v.  Penniman,  10  B latch. 
(U.  S.)  436,  (1873).  The  foreign  liabilities  of  directors  of  a  corporation 
may  be  either  contractual  or  penal.  If  contractual  it  may  be  enforced  in 
.  any  state;  but  a  liability  imposed  which  bears  no  proportion  to  the  amount 
of  harm  done  is  penal,  and  cannot  be  enforced  in  another  state.  Farr  v. 
Briggs.  72  Vt.  22'^  (joon). 

The  case  of  Taylor  v.  IV.  U.  Tel.  Co..  93  lozi'O  740,  (1893),  held:  A 
statute  of  South  Dakota  which  allows  the  recovery  of  fifty  dollars  in 
addition  to  actual  damages  where  a  telegram  is  negligentl>  delayed,  pro- 
vides a  statute  penalty  and  will  not  he  enforced  in  an  Iowa  suit,  and  it 
matten',  not  whether  the  penalty  provided  is  given  to  the  public  or  to 
individuals.  Carnuhan  v.  IV.  U.  T.  Co..  <S'p  Ind.  326,  (1883);  American 
Co.  V.  Ellis.  136  Ind.  212,  (1901).  Contra,  Brady  v.  Daly,  173  U.  S.  148, 
(1899).  As  to  corporations,  see  Erickson  v.  ticsmith,  4  Allen  {Mass.) 
233;  Bank  V.  Rindge,  134  Mass.  203;  Hancock  Bank  v.  Ellis,  172  Mass.  39. 


CHAPTER  VII. 

PROCEEDINGS  IN  PERSONAM  AND  IN  REM. 

PENNOYER  V.  NEFF,  1877. 
[95  U.  S.  714.] 

1.  Authority  of  Judicial  Tribunals.  5.  Effect  of  Judgments  Against 

2.  Service  of  Process.  Non-Residents. 

3.  Sovereignty  of   States.  6.  Full  Faith  and  Credit  Clause. 

4.  How  Jurisdiction  is  Acquired.  7.  Conclusiveness  of  Judgments. 

8.     Due  Process  of  Law. 

Mr.  Justice  Field  delivered  ihe  opinion  of  the  court. 

This  is  an  action  to  recover  the  possession  of  a  tract  of  land, 
of  the  allep^ed  vahie  of  $15,000.  situated  in  the  State  of  Oregon. 
The  plaintiff  asserts  title  to  the  premises  by  a  patent  of  the 
United  States  issued  to  him  in  1866,  under  the  act  of  Congress 
of  Sept.  2-],  1850,  usually  known  as  the  Donation  Law  of  Oregon. 
The  defendant  claims  to  have  acquired  the  premises  under  a 
sheriff's  deed,  made  ui)on  a  sale  of  the  property  on  execution 
issued  upon  a  judgment  recovered  against  the  plaintiff  in  one 
of  the  circuit  courts  of  the  State.  The  case  turns  upon  the 
validity  of  this  iudgment. 

It  appears  from  the  record  that  the  judgment  was  rendered 
in  February,  1866,  in  favor  of  J.  H.  Mitchell,  for  less  than  $300, 
including  costs,  in  an  action  brought  by  him  upon  a  demand  for 
services  as  an  attorney;  that,  at  the  time  the  action  was  com- 
menced and  the  judgment  rendered,  the  defendant  therein,  the 
plaintiff  here,  was  a  non-resident  of  the  State ;  that  he  was  not 
personally  served  with  process,  and  did  not  apj^ear  therein  ;  and 
that  the  judgment  was  entered  upon  his  default  in  not  answering 
the  complaint  upon  a  constructive  service  of  summons  by 
publication. 

The  Code  of  Oregon  provides  for  such  service  when  an  action 
is  brought  against  a  non-resident  and  absent  defendant,  who  has 
property  within  the  State.  It  also  provides,  where  the  action  is 
for  the  recovery  of  money  or  damages,  for  the  attachment  of  the 
property  of  the  non-resident.  And  it  also  declares  that  no  natural 
person  is  subject  to  the  jurisdiction  of  a  court  of  the  State,  "unless 


170  PRIVATE    INTERNATIONAL    LAW. 

he  appear  in  the  court,  or  be  found  within  the  State,  or  be  a 
resident  thereof,  or  have  property  therein ;  and,  in  the  last  case, 
only  to  the  extent  of  such  property  at  the  time  the  jurisdiction 
attached."  Construing  this  latter  provision  to  mean,  that,  in  an 
action  lor  money  or  damages  where  a  defendant  does  not  appear 
in  the  court,  and  is  not  found  within  the  State,  and  is  not  a  resi- 
dent thereof,  but  has  property  therein,  the  jurisdiction  of  the 
court  extends  only  over  such  property,  the  declaration  expresses 
a  principle  of  general,  if  not  universal,  law.  The  authority  of 
every  tribunal  is  necessarily  restricted  by  the  territorial  limits  of 
the  State  in  which  it  is  established.  Any  attempt  to  exercise 
authoritv  beyond  those  limits  would  be  deemed  in  every  other 
forum,  as  has  been  said  by  this  court,  an  illegitimate  assumption 
of  power,  and  be  resisted  as  mere  abuse.  D'Arcy  v.  Ketcliuiii 
et  al.,  II  How.  165.  In  the  case  against  the  plamtiff,  the  property 
here  in  controversy  sold  under  the  judgment  rendered  was  not 
attached,  nor  in  any  way  brought  under  the  jurisdiction  of  the 
court.  Its  first  connection  with  the  case  was  caused  by  a  levy 
of  the  execution.  It  was  not,  thereore,  disposed  of  pursuant  to 
any  adjudication,  but  only  in  enforcement  of  a  personal  judgment, 
having  no  relation  to  the  property,  rendered  against  a  non-resi- 
dent without  service  of  process  upon  him  in  the  action,  or  his 
appearance  therein.  The  court  below  did  not  consider  that  an 
attachment  of  the  property  was  essential  to  its  jurisdiction  or  to 
the  validity  of  the  sale,  but  held  that  the  judgment  was  invalid 
from  defects  in  the  affidavit  upon  which  the  order  of  publication 
was  obtained,  and  in  the  affidavit  by  which  the  publication  v/as 
' proved. 

There  is  some  difference  of  opinion  among  the  members  of 
this  court  as  to  the  rulings  upon  these  alleged  defects.  The 
majoriti^  are  of  opinion  that  inasmuch  as  the  statute  requires,  for 
an  order  of  publication,  that  certain  facts  shall  appear  by  affidavit 
to  the  satisfaction  of  tJic  court  or  judge,  defects  in  such  affidavit 
car.  only  be  taken  advantage  of  on  appeal,  or  by  some  other  direct 
proceeding,  and  cannot  be  urged  to  impeach  the  judgment  col- 
laterally. The  majority  of  the  court  are  also  of  opinion  that  the 
provision  of  the  statute  requiring  proof  of  the  publication  in  a 
newspaper  to  be  made  by  the  "affidavit  of  the  printer,  or  his  fore- 
man, or  his  principal  clerk,"  is  satisfied  when  the  affidavit  is  made 
by  the  editor  of  the  paper.  The  term  "printer,"  in  their  judg- 
ment, is  there  used  not  to  indicate  the  person  who  sets  up  the 
type, — he  does  not  usually  have  a  foreman  or  clerks, — it  is  rather 


PROCEEDINGS    'N    PERSONAM    AND    IN    REM.  171 

used  as  synonymous  with  publisher.  The  Supreme  Court  of 
New  York  so  held  in  one  case;  observing  that,  for  the  purpose  of 
making  the  required  proof,  pubhshers  were  "within  the  spirit  of 
the  statute."  Bitiicc  v.  Rccd,  i6  Ilarb.  (N.  Y.)  350.  And.  follow- 
ing this  ruling,  the  Supreme  Court  of  California  held  that  an 
aflidavit  made  by  a  "publisher  and  proprietor"  was  sufficient. 
Sharp  V.  Daugney,  33  Cal.  512.  The  term  "editor,"  as  used  when 
the  statute  of  New  York  was  passed,  from  which  the  Oregon 
law  is  borrowed,  usually  included  not  only  the  person  who  wrote 
or  selected  the  articles  for  publication,  but  the  person  who  pub- 
lished the  paper  and  put  it  into  circulation.  Webster,  in  an  early 
edition  of  his  Dictionary,  gives  as  one  of  the  definitions  of  an 
editor,  a  person  "who  superintends  the  publication  of  a  news- 
paper." It  is  principally  since  that  time  that  the  business  of  an 
editor  has  been  separated  from  that  of  a  publisher  and  printer^ 
and  has  become  an  independent  profession. 

If,  therefore,  we  were  confined  to  the  rulings  of  the  court 
below  upon  the  defects  in  the  affidavits  mentioned,  we  should  be 
unable  to  uphold  its  decision.  But  it  was  also  contended  in  that 
court,  and  is  insisted  upon  here,  that  the  judgment  in  the  State 
court  against  the  plaintiff  was  void  for  want  of  personal  service 
of  process  on  him,  or  of  his  appearance  in  the  action  in  which 
it  was  rendered,  and  that  the  premises  in  controversy  could  not 
be  subjected  to  the  payment  of  the  demand  of  a  resident  creditor 
except  by  a  proceeding  in  rem;  that  is,  by  a  direct  proceeding 
against  the  propertv  for  that  purpose.  If  these  positions  are 
sound,  the  ruling  of  the  Circuit  Court  as  to  the  invalidity  of  thac 
judgment  must  be  sustained,  notwithstanding  our  dissent  from 
the  reasons  upon  which  it  was  made.  And  that  they  are  sound 
would  seem  to  follow  from  two  well-established  principles  of 
public  law  respecting  the  jurisdiction  of  an  independent  State  over 
persons  and  property.  The  several  States  of  the  Union  are  not,  it 
is  true,  in  every  respect  independent,  many  of  the  rights  and  pow- 
ers which  originally  belonged  to  them  being  now  vested  in  the 
government  created  by  the  Constitution.  But,  except  as  restrained 
and  limited  liy  that  instrument,  they  possess  and  exercise  the 
authority  of  independent  States,  and  the  principles  of  public  law 
to  wliich  w  e  have  referred  are  aj)jjlicable  to  them.  One  of  these 
principles  is,  that  every  State  jxissesses  exclusive  jurisdiction 
and  sovereignty  over  persons  and  property  within  its  territttry. 
As  a  consequence,  every  State  has  the  power  to  determine  for 
itself  the  civil  status  and  capacities  of  its   inhabitants ,   to  pre- 


172  PRIVATE     INTERNATIONAL    LAW. 

•scribe  tlie  subjects  upon  whicb  they  may  contract,  the  forms  and 
solemnities  with  which  their  contracts  shall  be  executed,  the  rights 
and  obligations  arising  from  them,  and  the  mode  in  which  their 
validity  shall  be  determined  and  their  obligations  enforced ;  and 
also  to  regulate  the  manner  and  conditions  upon  which  property 
situated  within  such  territory,  both  personal  and  real,  may  be 
acquired,  enjoyed,  and  transferred.  The  other  principle  of  public 
law  referred  to  follows  from  the  one  mentioned ;  that  is,  that  no 
State  can  exercise  direct  jurisdiction  and  authority  over  persons 
or  property  without  its  territory.  Story,  Confl.  Laws,  c.  2 : 
Wheat.  Int.  Law,  pt.  2,  c.  2.  The  several  States  are  of  equal 
■dignity  and  authority,  and  the  independence  of  one  implies  the 
exclusion  of  power  from  all  others.  And  so  it  is  laid  down  by 
jurists,  as  an  elementary  principle,  that  the  laws  of  one  State 
have  no  operation  outside  of  its  territory,  except  so  far  as  is 
allowed  by  comity ;  and  that  no  tribunal  established  by  it  can 
■extend  its  process  beyond  that  territor}-  so  as  to  subject  either 
persons  or  property  to  its  decisions.  "Any  exertion  of  authority 
•of  this  sort  beyond  this  limit.''  says  Story,  "is  a  mere  nullity,  and 
incapable  of  binding  such  persons  or  property  in  any  other  tribu- 
nals."    Story,  Confl.  Laws,  sect.  539. 

But  as  contracts  made  in  one  State  may  be  enforceable  only 
in  another  State,  and  property  may  be  held  by  non-residents, 
the  exercise  of  the  jurisdiction  which  every  State  is  admitted  to 
possess  over  persons  and  property  within  its  own  territory  will 
often  affect  persons  and  property  without  it.  To  any  influence 
€xerted  in  this  way  by  a  State  affecting  persons  resident  or  prop- 
erty situated  elsewhere,  no  objection  can  be  justly  taken;  whilst 
any  direct  exertion  of  authority  upon  them,  in  an  attempt  to  give 
ex-territorial  operation  to  its  laws,  or  to  enforce  an  ex-territorial 
jurisdiction  by  its  tribunals,  would  be  deemed  an  encroachment 
upon  the  independence  of  the  State  in  which  the  persons  are 
domiciled  or  the  property  is  situated,  and  be  resisted  as  usurpation. 

Thus  the  State,  through  its  tribunals,  may  compel  persons 
•domiciled  within  its  limits  to  execute,  in  pursuance  of  their  con- 
tracts respecting  property  elsewhere  situated,  instruments  in  such 
form  and  with  such  solemnities  as  to  transfer  the  title,  so  far  as 
such  formalities  can  be  complied  with  ;  and  the  exercise  of  this 
jurisdiction  in  no  manner  interferes  with  the  supreme  control 
over  the  property  by  the  State  witnin  which  it  is  situated.  Penn 
V.  Lord  Baltimore,  i  Yes.  444;  Massit  v.  JVatts,  6  Cranch,  148; 
Wat  kins  v.  Hoi  man,  16  Pet.  25  ;  Corbet  i  v.  Nntt,  10  Wall.  464. 


PROCEEDINGS    IN    PERSONAM    AND    IN    REM.  173 

So  the  State,  through  its  tribunals,  may  subject  properiy 
situated  within  its  Hmits  owned  by  non-residents  to  the  payment 
of  the  deniand  of  its  own  citizens  aganist  them  ;  and  the  exercise 
of  this  jurisdiction  in  no  respect  infriii<,'^cs  upon  the  sovereignty 
of  tlie  State  where  the  owners  are  domiciled.  Every  State  owes 
protection  to  its  own  citizens ;  and,  when  non-residents  deal  with 
them,  it  is  a  legitimate  and  just  exercise  of  authority  to  hold  and 
app-ropriate  any  property  owned  by  such  non-residents  to  satisfy 
the  claims  of  its  citizens.  It  is  in  virtue  of  the  State's  jurisdic- 
tion over  the  property  of  the  non-resident  situated  within  its 
linnts  that  its  tribunals  can  inquire  into  that  non-resident's  obli- 
gations to  its  own  citizens,  and  the  inquiry  can  then  be  carried 
only  to  the  extent  necessary  to  control  the  disposition  of  the 
propert).  If  the  non-resident  have  no  property  in  the  State,  there 
is  nothing  upon  which  the  tribunals  can  adjudicate. 

These  views  are  not  new.  They  have  been  frequently  ex- 
pressed, with  more  or  less  distinctness,  in  opinions  of  eminent 
judges,  and  have  been  carried  into  adjudications  in  numerous 
cases.  Thus,  in  Ficqiiet  v.  Szvan,  5  Mas.  35,  Mr.  Justice  Story 
said : — 

''Where  a  party  is  within  a  territory,  he  may  justly  be  sub- 
jected to  its  prrcess,  and  bound  personally  by  the  judgment  pro- 
nounced on  such  process  against  him.  Where  he  is  not  within 
such  territory,  and  is  not  personally  subject  to  its  laws,  if.  on 
account  of  his  supposed  or  actual  property  being  within  the  terri- 
tory, process  by  the  local  laws  may,  by  attachment,  go  to  compel 
liis  appearance,  and  for  his  default  to  appear  judgment  may  be 
pronounced  agamst  him,  such  a  judgment  must,  upon  general 
principles,  be  deemed  only  to  bind  him  to  the  extent  of  such 
property,  and  cannot  have  the  effect  of  a  conclusive  judgment 
'.'J  pcrsojiain,  for  the  plain  reason,  that,  except  so  far  as  the  prop- 
erty is  concerned,  it  is  a  judgment  coram  non  judicc:' 

And  in  Bos^vell's  Lessee  v.  Otis,  9  How.  336,  where  the  title 
of  the  plaintiff  in  ejectment  was  acquired  on  a  sheriff's  sale, 
under  a  money  decree  rendered  upon  publication  of  notice  against 
non-residents,  in  a  suit  brought  to  enforce  a  contract  relating  to 
laiid,  Mr.  Ju.stice  McLean  said: — 

"Jurisdiction  is  acquired  in  one  of  two  modes:  first,  as 
against  the  person  of  the  dcfendaiit  by  the  service  of  process ;  or^ 


174  PRIVATii    INTERNATIONAL    LAW. 

secondlv,  by  a  procedure  against  the  property  of  the  defendant 
within  the  jurisdiction  of  the  court.  In  the  latter  case,  the  de- 
fendant IS  not  personally  bound  by  the  judgment  beyond  the 
property  in  question.  And  it  is  immaterial  whether  the  proceeding 
agsinst  the  property  be  by  an  attachment  or  bill  in  chancery.  It 
must  be  substantially  a  proceeding  in  rem." 

These  citations  are  not  made  as  authoritative  expositions  of 
the  law ;  lor  the  language  was  perhaps  not  essential  to  tlie  decision 
of  the  cases  in  which  it  was  used,  but  as  expressions  of  the 
opmicn  of  eminent  jurists.  But  in  Cooper  v.  Reynolds,  reported 
m  the  loth  of  Wallace,  it  was  essential  to  the  disposition  of  the 
case  to  declare  the  effect  of  a  personal  action  against  an  absent 
party,  without  the  jurisdiction  of  the  court,  not  served  with  pro- 
cess or  voluntarily  submitting  to  the  tribunal,  when  it  was  sought 
to  subject  his  property  to  the  payment  of  a  demand  of  a  resident 
complainant ;  artd  in  the  opinion  there  delivered  we  have  a  clear 
statement  of  the  law  as  to  the  efficacy  of  such  actions,  and  the 
jurisdiction  of  the  court  over  them.  In  that  case,  the  action  was 
for  damages  for  alleged  false  imprisonment  of  the  plaintiff;  and, 
upon  his  affidavit  that  the  defendants  had  tied  from  the  State,  or 
had  absconded  or  concealed  themselves  so  that  the  ordinary  pro- 
cess of  law  could  not  reach  them,  a  writ  of  attachment  was  sued 
out  against  their  property.  Publication  was  ordered  by  the  court, 
giving  notice  to  them  to  appear  and  plead,  answer  or  demur,  or 
that  the  action  would  be  taken  as  confessed  and  proceeded  in 
ex  parte  as  to  them.  Publication  was  had  ;  but  they  made  default, 
and  judgment  was  entered  against  them,  and  tlie  attached  prop- 
erty was  sold  tmder  it.  The  purchaser  having  been  put  into  pos- 
session of  ihe  property,  the  original  owner  brought  ejectment  for 
its  recovery.  In  considering  the  character  of  the  proceeding,  the 
court,  speaking  through  Mr.  Justice  Miller,  said : — 

"Its  essential  purpose  or  nature  is  to  establish,  by  the  judg- 
ment of  the  court,  a  demand  or  claim  against  the  defendant,  and 
subject  his  property  lying  within  the  territorial  jurisdiction  of  the 
court  to  the  payment  of  that  demand.  But  the  plaintiff  is  met  at 
the  commencement  of  his  proceedings  by  the  fact  that  the  de- 
fendant is  not  within  the  territorial  jurisdiction,  and  cannot  be 
served  with  any  process  by  which  he  can  be  brought  personally 
within  the  power  of  the  court.  For  this  difficulty  the  statute  has 
provided  a  remedy.    It  says  that,  upon  affidavit  being  made  of  that 


PROCEEDINGS    IN    PERSONAM    AND    IN    REM.  175 

fact,  a  writ  of  attachment  may  be  issued  and  levied  on  any  of 
tlie  defendant's  property,  and  a  publication  may  be  made  vvarning 
him  lo  appear:  and  that  thereafter  the  court  may  proceed  in  the 
case,  whether  he  appears  or  not.  Tf  the  defendant  appear.-,  the 
cause  becomes  mainly  a  suit  ;';;  personam,  with  the  added  incident, 
that  the  property  attached  remains  liable,  under  the  control  of 
the  court,  to  answer  to  any  demand  which  may  be  established 
against  the  defendant  by  tlie  final  judgment  of  the  court.  But 
if  there  is  no  appearance  of  the  defendant,  and  no  service  of 
process  on  him,  the  case  becomes  in  its  essential  nature  a  pro- 
•cceding  ,;;  rem,  the  only  effect  of  which  is  to  subject  the  property 
attached  to  the  payment  of  the  demand  which  tiie  court  may  find 
to  be  due  to  the  plaintifl".  That  such  is  the  nature  of  this  pro- 
■ceeding  in  this  latter  class  of  cases  is  clearly  evinced  by  two  well- 
established  propositions :  first,  the  judgment  of  the  court,  though 
in  form  a  personal  judgment  against  the  defendant,  has  no  effect 
beyond  the  property  attached  in  that  suit.  No  general  execution 
can  be  issued  for  any  balance  unpaid  after  the  attached  property 
is  exhausted.  No  suit  can  be  maintained  on  such  a  judgment  in 
the  same  court,  or  in  any  other ;  nor  can  it  be  used  as  evidence 
in  any  other  proceeding  not  affecting  the  attached  property ;  nor 
•could  the  costs  in  that  proceeding  be  collected  of  defendant  out  of 
an>  other  property  tlian  that  attached  in  the  suit.  Second,  the 
court,  in  such  a  suit,  cannot  proceed,  unless  the  officer  finds  some 
property  of  defendant  on  which  to  levy  the  writ  of  attachment. 
A  return  that  none  can  be  found  is  the  end  of  the  case,  and  de- 
prives the  court  of  further  jurisdiction,  though  the  publication 
may  have  been  duly  made  and  proven  in  court." 

The  fact  that  the  defendants  in  that  case  had  fled  from  the 
Stale,  or  had  concealed  themselves,  so  as  not  to  be  reached  by 
the  c-dinarv  process  of  the  court,  and  were  not  non-residents, 
was  not  made  a  point  in  the  decision.  The  opinion  treated  them 
as  being  without  the  territorial  jurisdiction  of  the  court ;  and  the 
grounds  and  extent  of  its  authority  over  persons  and  propert) 
thus  situated  were  considered,  when  they  were  not  brought  within 
its  jurisdiction  by  personal  service  or  voluntary  appearance. 

The  writer  of  the  present  opinion  considered  that  some  of  the 
objections  to  the  preliminary  proceedings  in  the  attachment  suit 
were  well  taken,  and  therefore  dissented  from  the  judgment  of 
the  court ;  but  to  the  doctrine  declare  '  in  the  above  citation  he 
agreed,  and  he  may  add,  that  it  received  the  approval  of  all  the 


176  PRIVATE    INTERNATIONAL    LAW, 

judges.  It  is  the  only  doctrine  consistent  with  proper  protection 
to  citizens  of  other  States.  If,  without  personal  service,  judg- 
ments in  personam,  obtained  ex  parte  against  non-residents  and. 
absent  parties,  upon  mere  publication  of  process,  which,  in  the. 
great  majority  of  cases,  would  never  be  seen  by  the  parties  inter- 
ested, could  be  upheld  and  enforced,  they  would  be  the  constant 
instruments  of  fraud  and  oppression.  Judgments  for  all  sorts  of 
claims  upon  contracts  and  for  torts,  real  or  pretended,  would  be 
thus  obrained,  under  which  property  would  be  seized,  when  the 
evidence  of  the  transactions  upon  which  they  were  founded,  if 
they  ever  had  any  existence,  had  perished. 

Substituted  service  by  publication,  or  in  any  other  authorized 
form,  may  be  sufficient  to  inform  parties  of  the  object  of  pro- 
ceedings taken  where  property  is  once  brought  under  the  control 
of  the  court  by  seizure  or  some  equivalent  act.  The  law  assumes, 
that  property  is  always  in  possession  of  its  owner,  in  person 
or  by  agent ;  and  it  proceeds  upon  the  theory  that  its  seizure  will 
inform  hiu',  not  only  that  it  is  taken  into  the  custody  of  the  court,, 
but  tliat  he  must  look  to  any  proceedings  auhorized  by  law  upon 
such  seizure  for  its  condemnation  and  sale.  Such  service  may 
also  be  sufficient  in  cases  where  the  object  of  the  action  is  to- 
reach  and  dispose  of  property  in  the  State,  or  of  some  interest, 
therein,  by  enforcing  a  contract  or  a  lien  respecting  the  same,, 
or  to  Dartition  it  among  different  owners,  or,  when  the  public  is. 
a  party,  to  condemn  and  appropriate  it  for  a  public  purpose.  In 
other  words,  such  service  may  answer  in  all  actions  which  are- 
substantially  proceedings  in  rem.  But  where  the  entire  object  of 
the  action  is  to  determine  the  personal  rights  and  obligations  of 
the  defendants,  that  is,  where  the  suit  is  merely  in  personam,. 
constructive  service  in  this  form  iipon  a  non-resident  is  ineffectual 
for  any  purpose.  Process  from  the  tribunals  of  one  State  can- 
noi  run  into  another  State,  and  summon  parties  there  domiciled 
to  leave  its  territory  and  respond  to  proceedings  against  them. 
Publication  of  process  or  notice  within  the  State  where  the- 
tribunal  sits  cannot  create  any  greater  obligation  upon  the  non- 
resident to  appear.  Process  sent  to  him  out  of  the  State,  and 
process  published  within  it.  are  equally  unavailing  in  proceedings, 
to  establish  his  personal  liability. 

The  want  of  authority  of  the  tribunals  of  a  State  to  adjudi- 
cate upon  the  obligations  of  non-residents,  where  they  have  no- 
property  within  its  limits,  is  not  denied  by  the  court  below  ;  but 
the  position  is  assumed,  that,  where  Iney  have  property  within 


PROCEEDINGS    IN    PERSONAM    AND    IN    REM.  177 

the  State,  it  is  immaterial  whether  the  property  is  in  tne  first 
instance  brought  under  the  control  of  the  court  by  attachment  or 
some  other  equivalent  act,  and  afterwards  applied  by  its  judg- 
ment to  the  satisfaction  of  demands  against  its  owner ;  or  such 
demands  be  first  established  in  a  personal  action,  and  the  property 
of  the  non-resident  be  afterwards  seized  and  sold  on  execution. 
But  the  answer  to  this  position  has  already  been  given  in  the 
statement,  that  the  jurisdiction  of  the  court  to  inquire  into  and 
determine  his  obligations  at  all  is  only  incidental  to  its  jurisdic- 
tion over  the  property.  Its  jurisdiction  in  that  respect  cannot  be 
made  to  depend  upon  facts  to  be  ascertained  after  it  has  tried 
the  cause  and  rendered  the  judgment.  If  the  judgment  be  pre- 
viously void,  it  will  not  become  valid  by  the  subsequent  discovery 
of  property  of  the  defendant,  or  by  his  subesquent  acquisition  of  it. 
The  judgment,  if  void  when  rendered,  will  always  remain  void ; 
it  cannot  occupy  the  doubtful  position  of  being  valid  if  property 
be  found,  and  void  if  there  be  none.  Even  if  the  position  assumed 
were  confined  to  cases  where  the  non-resident  defendant  pos- 
sessed property  in  the  State  at  the  commencement  of  the  action, 
it  would  still  make  the  validity  of  the  proceedings  and  judgment 
depend  upon  the  question  whether,  before  the  levy  of  the  execu- 
tion, the  defendant  had  or  had  not  disposed  of  the  property.  If 
before  the  levy  the  property  should  be  sold,  then,  according  to  this 
position,  the  judgment  would  not  be  binding.  This  doctrine 
would  introduce  a  new  element  of  uncertainty  in  judicial  pro- 
ceedings. The  contrary  is  the  law  :  the  validity  of  every  judg- 
ment depends  upon  the  jurisdiction  of  the  court  before  it  is  ren- 
dered, not  upon  what  may  occur  subsequently.  In  Webster  v. 
Reid,  reported  in  nth  of  Howard,  the  plaintifif  claimed  title  to 
land  sold  under  judgments  recovered  in  suits  brought  in  a  terri- 
torial court  of  Iowa,  upon  publication  of  notice  under  a  law  of 
the  territory,  without  service  of  process ;  and  the  court  said  : — 

"These  suits  were  not  a  proceeding  in  rem  against  the  land, 
but  were  in  personam  against  the  owners  of  it.  Whether  they 
all  resided  within  the  territory  or  not  does  not  appear,  nor  is 
it  a  matter  of  any  importance.  No  person  is  required  to  answer 
in  a  suit  en  whom  process  has  not  been  served,  or  whose  prop- 
erty has  not  been  attached.  In  this  case,  there  was  no  personal 
notice,  nor  an  attachment  or  other  proceeding  against  the  land, 
until  after  the  judgments.  The  judgments,  therefore,  are  nullities, 
and  did  not  authorize  the  executions  on  which  the  land  was  sold." 

12 


178  PRIVATE    INTERNATIONAL    LAW. 

The  force  and  effect  of  judgments  rendered  against  non-resi- 
dents without  personal  service  of  process  upon  them,  or  their 
voluntary  appearance,  have  been  the  subject  of  frequent  con- 
sideration in  the  courts  of  the  United  States  and  of  the  several 
States,  as  attempts  have  been  made  to  enforce  such  judgments 
in  States  other  than  those  in  which  they  were  rendered,  under 
the  provision  of  the  Constitution  requiring  that  "full  faith  and 
credit  shall  be  given  in  each  State  to  the  public  acts,  records,  and 
judicial  proceedings  of  every  other  State;"  and  the  act  of  Con- 
gress providing  for  the  mode  of  authenticating  such  acts,  records, 
and  proceedings,  and  declaring  that,  when  thus  authenticated, 
''they  shall  have  such  faith  and  credit  given  to  them  in  every 
court  within  the  Ihiited  States  as  they  have  by  law  or  usage  in 
the  courts  of  the  State  from  which  they  are  or  shall  be  taken." 
In  the  earlier  cases,  it  was  supposed  that  the  act  gave  to  all  judg- 
ments the  same  effect  m  other  States  which  they  had  by  law  in 
the  State  where  rendered.  But  this  view  was  afterwards  qualified 
so  as  to  make  the  act  applicable  only  when  the  court  rendering 
the  judgment  had  jurisdiction  of  the  parties  and  of  the  subject- 
matter,  and  not  to  preclude  an  inquiry  into  the  jurisdiction  of  the 
court  in  which  the  judgment  was  rendered,  or  the  right  of  the 
State  itself  to  exercise  authority  over  the  person  or  the  subject- 
matter.  M'Elinoyle  v.  Cohen,  13  Pet.  312.  In  the  case  of 
D'Arcy  v.  Kctchem,  reported  in  the  nth  of  Howard,  this  view 
is  stated  with  great  clearness.  That  was  an  action  in  the  Circuit 
Court  of  the  United  States  for  Louisiana,  brought  upon  a  judg- 
ment rendered  in  New  York  under  a  State  statute,  against  two 
■  joint  debtors,  only  one  of  whom  had  been  served  with  process, 
the  other  being  a  non-resident  of  the  State.  The  Circuit  Court 
held  the  judgment  conclusive  and  binding  upon  the  non-resident 
not  served  with  process ;  but  this  court  reversed  its  decision,  ob- 
serving, that  it  was  a  familiar  rule  that  countries  foreign  to  our 
own  disregarded  a  judgment  merely  against  the  person,  where 
the  defendant  had  not  been  served  with  process  nor  had  a  day  in 
court ;  that  national  comity  was  never  thus  extended ;  that  the 
proceeding  was  deemed  an  illegitimate  assumption  of  power,  and 
resisted  as  mere  abuse ;  that  no  faith  and  credit  or  force  and 
effect  had  been  given  to  such  judgments  by  any  State  of  the 
Union,  so  far  as  known,  and  that  the  State  courts  had  uniformly, 
and  in  many  instances,  held  them  to  be  void.  "The  international 
law,"  said  the  court,  "as  it  existed  among  the  States  in  1790,  was 
that    judgment  rendered  in  one  State,  assuming  to  bind  the  per- 


PROCEEDINGS    IN    PERSONAM    AND    IN    REM.  179 

son  of  a  citizen  of  another,  was  void  within  the  foreign  State, 
when  the  defendant  had  not  been  served  with  process  or  vohin- 
tarily  made  defence;  because  neither  the  legislative  jurisdiction 
nor  that  of  courts  of  justice  had  binding  force."  And  the 
court  held  that  the  act  of  Congress  did  not  intend  to  declare  a 
new  rule,  or  to  embrace  judicial  records  of  this  description.  As 
was  stated  in  a  subsequent  case,  the  doctrine  of  this  court  is, 
that  the  act  ''was  not  designed  to  displace  that  principle  of  natural 
justice  which  requires  a  person  to  have  notice  of  a  suit  before  he 
can  be  conclusively  bound  by  its  result,  nor  those  rules  of  public 
law  ^vhich  protect  persons  and  property  within  one  State  from  the 
exercise  of  jurisdiction  over  them  by  another."  The  Lafayette 
Insurance  Co.  v.  French  ct  al,  i8  How.  404. 

This  whole  subject  has  been  very  fully  and  learnedly  con- 
sidered in  the  recent  case  of  Thompson  v.  JVhitnian,  18  Wall.  457, 
where  all  the  authorities  are  carefully  reviewed  and  distin- 
guished, and  the  conclusion  above  stated  is  not  only  reaffirmed, 
but  the  doctrine  is  asserted,  that  the  record  of  a  judgment  ren- 
dered m  another  State  may  be  contradicted  as  to  the  facts  neces- 
sary to  give  the  court  jurisdiction  against  its  recital  of  their 
existence.  In  all  the  cases  brought  in  the  State  and  Federal 
courts,  where  attempts  have  been  made  under  the  act  of  Congress 
to  give  effect  in  one  State  to  personal  judgments  rendered  in 
another  State  against  non-residents,  without  service  upon  them, 
or  upon  substituted  service  by  publication,  or  in  some  other  form, 
It  has  been  held,  without  an  exception,  so  far  as  we  are  aware, 
that  such  judgments  were  without  any  binding  force,  except  as 
to  property,  or  interest  in  property,  within  the  State,  to  reacli 
and  affect  which  was  the  object  of  the  action  in  which  the  judg- 
ment was  rendered,  and  which  property  was  brought  under  con- 
trol of  the  court  in  connection  with  the  process  against  the  person, 
'^he  proceeding  in  such  cases,  though  in  the  form  of  a  personal 
action,  has  been  uniformly  treated,  where  service  was  not  ob- 
tained, and  the  party  did  not  voluntarily  appear,  as  effectual  and 
binding  merely  as  a  proceeding  in  rem,  and  as  having  no  opera- 
lion  beyond  the  disposition  of  the  property,  or  some  interest 
therein.  And  the  reason  assigned  for  this  conclusion  has  been 
that  which  we  have  already  stated,  that  the  tribunals  of  one  State 
have  no  jurisdiction  over  persons  beyond  its  limits,  and  can 
inquire  only  into  their  obligations  to  its  citizens  when  exercising 
its  conceded  jurisdiction  over  their  property  within  its  limits.  In 
Bissell  V.  Briggs.  decided  by  the  Supreme  Court  of  Massachusetts 


180  PRIVATE    INTERNATIONAL    LAW. 

as  early  as  1813,  the  law  is  stated  substantially  in  conformity  with 
these  views.  In  that  case,  the  court  considered  at  length  the  effect 
of  the  constitutional  provision,  and  the  act  of  Congress  mentioned, 
and  after  stating  that,  in  order  to  entitle  the  judgment  rendered 
in  any  court  of  the  United  States  to  the  full  faith  and  credit 
mentioned  in  the  Constitution,  the  court  must  have  had  juris- 
diction not  only  of  the  cause,  but  of  the  parties,  it  proceeded  to 
illustrate  its  position  by  observing,  that,  where  a  debtor  living  in 
one  State  has  goods,  effects,  and  credits  in  another,  his  creditor 
living  in  the  other  State  may  have  the  property  attached  pursuant 
to  its  laws,  and,  on  recovering  judgment,  have  the  property  applied 
to  its  satisfaction ;  and  that  the  party  in  whose  hands  the  property 
was  would  be  protected  by  the  judgment  in  the  State  of  the 
debtor  against  a  suit  for  it.  because  the  court  rendering  the  judg- 
ment had  jurisdiction  to  that  extent ;  but  that  if  the  property 
attached  were  insufficient  to  satisfy  the  judgment,  and  the  creditor 
should  sue  on  the  judgment  in  the  State  of  the  debtor,  he  would 
fail,  because  the  defendant  was  not  amenable  to  the  court  ren- 
dering the  judgment.  In  other  words,  it  was  held  that  over  the 
property  within  the  State  the  court  had  jurisdiction  by  the  attach- 
ment, but  had  none  over  his  person ;  and  that  any  determination 
of  his  liability,  except  so  far  as  was  necessary  for  the  disposition 
of  the  property,  was  invalid. 

In  Kilbourn  v.  VVoodworth,  5  Johns.  (N.  Y.)  37,  an  action  of 
debt  was  brought  in  New  York  upon  a  personal  judgment 
recovered  in  Massachusetts.  The  defendant  in  that  judgment 
was  not  served  with  process ;  and  the  suit  was  commenced  by 
the  attachment  of  a  bedstead  belonging  to  the  defendant,  accom- 
panied with  a  summons  to  appear,  served  on  his  wife  after  she 
had  left  her  place  in  Massachusetts.  The  court  held  that  the 
attachment  bound  only  the  property  attached  as  a  proceeding 
in  rrm,  and  that  it  could  not  bind  the  defendant,  observing,  that 
to  bind  a  defendant  personally,  when  he  was  never  personally 
summoned  or  had  notice  of  the  proceeding,  would  be  cortraiy 
to  the  first  principles  of  justice,  repeating  the  language  in  that 
respect  of  Chief  Justice  DeGrey,  used  in  the  case  of  Fisher  v. 
Lane,  3  Wils.  297,  in  1772.  See  also  Borden  v.  Fitch,  15  Johns. 
(NY.)  121,  and  the  cases  there  cited,  and  Harris  v.  Hardeman 
et  al.,  14  How.  334.  To  the  same  purport  decisions  are  found  in 
all  the  State  courts.  In  several  of  the  cases,  the  decision  has  been 
accompanied  with  the  observation  that  a  personal  judgment  thus 
recovered  has  no  binding  force  without  the  State  in  which  it  is 


PROCEEDINGS    IN    PERSONAM    AND    IN    REM.  181 

rendered,  irnplyins^  that  in  such  State  it  may  be  valid  and  binding. 
But  if  the  court  lias  no  jurisdiction  over  the  person  of  the  de- 
fendant by  reason  of  his  non-residence,  and,  consequently,  no 
authority  to  pass  upon  his  personal  rights  and  obligations;  if  the 
whole  proceeding,  without  service  upon  him  or  his  appearance, 
is  coram  iioii  jndicc  and  void ;  if  to  hold  a  defendant  bound  by 
such  a  judgment  is  contrary  to  the  first  principles  of  justice. — it 
is  difficult  to  see  how  the  judgment  can  legitimately  have  any 
force  within  the  State.  The  language  used  can  be  justified  only 
on  the  ground  that  there  was  no  mode  of  directly  reviewing  such 
judgment  or  impeaching  its  validity  v/ithin  the  State  where  ren- 
dered ;  and  that,  therefore,  it  could  be  called  in  question  only 
when  its  enforcement  was  elsewhere  attempted.  In  later  cases, 
this  language  is  repeated  with  less  frequency  than  formerly,  it 
beginning  to  be  considered,  as  it  always  ought  to  have  been,  thai 
a  judgment  which  can  be  treated  in  any  State  of  this  Union  as 
contrary  to  the  first  principles  of  justice,  and  as  an  absolute  nullity, 
because  rendered  without  any  jurisdiction  of  the  tribunal  over 
the  party,  is  not  entitled  to  any  respect  in  the  State  where  ren- 
dered. Smith  V.  McCutchen,  38  Mo.  415;  Darrancc  v.  Preston, 
18  Iowa,  396;  Hakes  v.  Shiipe,  27  id.  465;  Mitchell's  Adminis- 
trator V.    Crav.  18  Ind.  123. 

Be  that  as  it  may,  the  courts  of  the  United  States  are  not 
required  to  give  effect  to  judgments  of  this  character  when  any 
right  is  claimed  under  them.  Whilst  they  are  not  foreign  tribu- 
nals in  their  relations  to  the  State  courts,  they  are  tribunals  of 
a  different  sovereignty  exercising  a  distinct  and  independent  juris- 
diction, and  are  bound  to  give  to  the  judgments  of  the  State  courts 
only  the  same  faith  and  credit  which  the  courts  of  another  State 
are  bound  to  give  to  them. 

Since  the  adoption  of  the  Fourteenth  Amendment  to  the  Fed- 
eral Constitution,  the  validity  of  such  judgments  may  be  directly 
questioned,  and  their  enforcement  in  the  State  resisted  on  the 
ground  that  proceedings  in  a  court  of  justice  to  determine  the 
personal  rights  and  obligations  of  parties  over  whom  that  court 
has  no  jurisdiction  do  not  constitute  due  process  of  law.  What- 
ever difficulty  may  be  experienced  in  giving  to  those  terms  a 
definition  which  will  embrace  every  permissible  exertion  of  power 
affecting  private  rights,  and  exclude  such  as  is  forbidden,  there 
can  be  no  doubt  of  their  meaning  when  applied  to  judicial  pro- 
ceedings. They  then  mean  a  course  of  legal  proceedings  accord- 
ing to  those  rules  and  principles  which  have  been  established  in 


182  PRIVATE    INTERNATIONAL    LAW. 

our  systems  of  jurisprudence  for  the  protection  and  enforcement 
of  private  rights.     To  give  such  proceedings  any  vaHdity,  there 
must  be  a  tribunal  competent  by  its  constitution — that  is,  by  the 
law  of  its  creation — to  pass  upon  the  subject-matter  of  the  suit; 
and,  if  that  involves  merely  a  determination  of  the  personal  lia- 
bility of  the  defendant,  he  must  be  brought  withm  its  jurisdiction 
by  service  of  process  within  the  State,  or  his  voluntary  appearance. 
Except  in  cases  affecting  the  personal  status  of  the  plaintiff, 
and  cases  in  which  that  mode  of  service  may  be  considered  to 
have  been  assented  to  in  advance,  as  hereinafter  mentioned,  the 
substituted  service  of  process  by  publication,  allowed  by  the  law 
of  Oregon  and  by  similar  laws  in  other  States,  where  actions  are 
brought  against  non-residents,  is  effectual  only  where,  in  connec- 
tion with  process  against  the  person  for  commencing  the  action, 
propcrt)   in  the  State  is  brought  under  the  control  of  the  court, 
and  subjected  to  its  disposition  by  process  adapted  to  that  purpose, 
oi   where  the  uidgment  is  sought  as  a  means  of  reaching  such 
property  or  affecting  some  interest  therein ;  in  other  words,  where 
the  action  is  in  the  nature  of  a  proceeding  i)i  rem.     As  stated  by 
Cooley  in  his  Treatise  on  Constitutional  Limitations,  405,  for  any 
other  purpose  than  to  subject  the  property  of  a  non-resident  to 
valid  claims  against  him  in  the  State,  '"due  process  of  law  would 
require  appearance  or  personal  service  before  the  defendant  could 
be  personally  bound  by  any  judgment  rendered." 

It  is  true  that,  in  a  strict  sense,  a  proceeding  m  rem  is  one 
takeri  directly  against  property,  and  has  for  its  object  the  disposi- 
tion of  the  property,  without  reference  to  the  title  of  individual 
claimants ;  but,  in  a  larger  and  more  general  sense,  the  terms  are 
applied  to  actions  between  parties,  where  the  direct  object  is  to 
reach  and  dispose  of  property  owned  by  them,  or  of  some  interest 
therein.  Such  are  cases  commenced  by  attachment  against  the 
property  of  debtors,  or  instituted  to  partition  real  estate,  fore- 
close a  mortgage,  or  enfore  a  lien.  So  far  as  they  affect  property 
in  the  State,  they  are  substantially  proceedings  in  rem  in  the 
broader  sense  which  we  have  mentioned. 

■  It  is  hardly  necessary  to  observe,  that  in  all  we  have  said  we 
have  had  reference  to  proceedings  in  courts  of  first  instance,  and 
to  their  jurisdiction,  and  not  to  proceedings  in  an  appellate  tribunal 
to  review  the  action  of  such  courts.  The  latter  may  be  taken  upon 
such  notice,  personal  or  constructive,  as  the  State  creating  the 
tribunal  may  provide.    They  art  considered  as  rather  a  continua- 


PROCEEDINGS    IN    PERSONAM    AND    IN    REM.  183 

tion  of  the  original  litifj^ation  than  the  commencement  of  a  new 
action.    Nations  ct  al.  v.  Johnson  et  al.,  24  How.  195. 

It  follows  from  the  views  expressed  that  the  personal  jiulg- 
nient  recovered  in  the  State  court  of  Oregon  against  the  plaintiff 
herein,  then  a  non-resident  of  the  State,  was  without  any  validity, 
and  CI  id  not  authorize  a  sale  of  the  property  in  controversy. 

To  prevent  any  misapplication  of  the  views  expressed  in  this 
opinion,  it  is  proper  to  ohscrve  that  we  do  not  mean  to  assert,  by 
any  thing  we  have  said,  that  a  State  may  not  authorize  proceed- 
ings to  determine  the  status  of  one  of  its  citizens  towards  a  non- 
resident, which  would  be  binding  within  the  State,  though  made 
without  service  of  process  or  personal  notice  to  the  non-resident. 
The  jurisdiction  which  every  State  possesses  to  determine  the 
civil  sfahis  and  capacities  of  all  its  inhabitants  involves  authority 
to  prescribe  tlie  conditions  on  which  proceedings  affecting  them 
may  be  commenced  and  carried  on  within  its  territory.  The  State, 
for  example,  has  absolute  right  to  prescribe  the  conditions  upon 
which  the  marriage  relations  between  its  own  citizens  shall  be 
created,  and  the  causes  for  which  it  may  be  dissolved.  One  of 
the  parties  guilty  of  acts  for  which,  by  the  law  of  the  State,  a  dis- 
solution m?y  he  granted,  may  have  removed  to  a  State  where  no 
dissolution  is  permitted.  The  complaining  party  would,  therefore, 
fail  if  a  divorce  were  sought  in  the  State  of  the  defendant ;  and 
if  application  could  not  be  made  to  the  tribunals  of  the  complain- 
ant's domicile  in  such  case,  and  proceedings  be  there  instituted 
without  personal  service  of  process  or  personal  notice  to  the 
offending  party,  the  injured  citizen  would  be  without  redress. 
Bish.  Marr.  and  Div.,  sect.  156. 

Neither  do  we  mean  to  assert  that  a  State  may  not  require 
a  non-resident  entering  into  a  partnership  or  association  within 
Its  limits,  or  making  contracts  enforceable  there,  to  appoint  an 
agent  or  representative  in  the  State  to  receive  service  of  process 
aiid  notice  in  legal  proceedings  instituted  with  respect  to  such 
partnership,  association,  or  contracts,  or  to  designate  a  place 
where  such  service  may  be  made  and  notice  given,  and  provide, 
upon  their  failure,  to  make  such  appointment  or  to  designate  such 
place  that  service  n;ay  be  made  upon  a  public  otlficer  designated 
for  that  purpose,  or  in  some  other  prescribed  way,  and  that  judg- 
ments rendered  upon  such  service  may  not  be  binding  upon  the 
non-residents  both  within  aijd  without  the  State.  As  was  said  by 
the  Court  of  Exchequer  in  Vallcc  v.  Diiiiicr'^uc,  4  Kxch.  Jip,  "Ir 
is  not  contrary  to  natural  justice  that  a  man  who  has  agreed  to 


184  PRIVATE    INTERNATIONAL    LAW. 

receive  a  particular  morle  of  notification  of  legal  proceedings 
should  be  bound  by  a  judgment  in  which  that  particular  mode  of 
notification  has  been  followed,  even  though  he  may  not  have 
actual  notice  of  them."  See  also  The  Lafayette  Insurance  Co.  v. 
French  ct  ai,  i8  How.  404,  and  Gillespie  v.  Commercial  Mutual 
Marine  Insurance  Co.^  12  Gray  (Mass.),  201.  Nor  do  we  doubt 
that  a  State,  on  creating  corporations  or  other  institutions  for 
pecuniary  or  charitable  purposes,  may  provide  a  mode  in  which 
their  conduct  may  be  investigated,  their  obligations  enforced,  or 
their  charters  revoked,  which  shall  require  other  than  personal 
service  upon  cheir  officers  or  members.  Parties  becoming  mem- 
bers of  such  corporations  or  institutions  would  hold  their  interest 
subject  to  the  conditions  prescribed  by  law.  Copin  v.  Adamson, 
Law  Rep.  q  Ex.  345. 

In  the  present  case,  there  is  no  feature  of  this  kind,  and,  con- 
sequently, no  consideration  of  what  would  be  the  efifect  of  such 
legislation  in  enforcing  the  contract  of  a  non-resident  can  arise. 
The  question  here  respects  only  the  validity  of  a  money  judgment 
rendered  in  one  State,  in  an  action  upon  a  simple  contract  against 
the  resident  of  another,  without  service  of  process  upon  him,  or 
his  appearance  therein. 

Judgment  ailirmed}^ 

^^McBwen  v.  Zimmer,  38  Mich.  765;  Arndt  v.  Griggs,  134  U.  S.  316; 
Rand  v.  Hanson,  154  Mass.  8/;  Tyler  v.  Court  of  Registration,  17s 
Mass.  71. 

DIVORCE. 
ANDREWS  V.  ANDREWS,  1903. 

[188  U.  S.  14.] 

1.  Nature  of   the    Marriage    Con-     5.     Domicil  as  Determining  Jurisdic- 

tract.  tion  in  Cases  of  Divorce. 

2.  Powers    of    State    and    Federal     6.     The     Law     Applied     to     Divorce 

Governments      to      Regulate  Proceedings. 

Marriage  and  Divorce.  7.     Service  of  Process  Upon  Defend- 

3.  Full  Faith  and  Credit  Clause.  ant. 

4.  Extra-territorial        Effect        of 

Judgment  of  Divorce. 

The  plaintiff  and  the  defendant  in  error,  each  claiming  to  be 
thr  lawful  widow  of  Charles  S.  Andrews,  petitioned  to  be  ap- 
pointed administratrix  of  his  estate.  The  facts  were  found  as 
follows : 

Charles  S.  and  Kate  H.  Andrews  married  in  Boston  in  April, 
1887,  and  they  lived  together  at  their  matrimonial  domicil  in  the 


DIVORCE.  185 

State  of  Massachusetts.  In  April,  1890,  the  wife  began  a  suit  for 
separate  maintenance,  which  was  dismissed  in  December,  1890, 
"because  of  a  settlement  between  the  parties,  adjusting  their  prop- 
•erty  relations. 

In  the  summer  of  1891,  Charles  S.  Andrews,  to  quote  from 
the  findings,  "being  then  a  citizen  of  Massachusetts  and  dom- 
iciled in  Boston,  went  to  South  Dakota  to  obtain  a  divorce  for 
^  cause  which  occurred  here  while  the  parties  resided  here,  and 
which  would  not  authorize  a  divorce  by  the  laws  of  this  Com- 
monwealth ;  he  remained  personally  in  that  State  a  period  of  time 
longer  than  is  necessary  by  the  laws  of  said  State  to  gain  a  dom- 
icil  there,  and  on  November  19,  1891,  filed  a  petition  for  divorce 
in  the  proper  court  of  that  State." 

Concerning  the  conduct  of  Charles  S.  Andrews  and  his  pur- 
pose to  obtain  a  divorce  in  South  Dakota,  whilst  retaining  his 
domicil  in  Massachusetts,  the  facts  were  found  as  follows : 

"The  husband  went  to  South  DaKota  and  took  up  his  resi- 
dence there  to  get  this  divorce,  and  that  he  intended  to  return 
to  this  State  when  the  business  was  finished.  He  boarded  at  a 
hotel  in  Sioux  Falls  all  the  time,  and  had  no  other  business  there 
than  the  prosecution  of  this  divorce  suit.  I  find,  however,  that 
he  voted  there  at  a  state  election  in  the  fall  of  1891,  claiming  the 
right  to  do  so  as  a  bona  fide  resident  under  the  laws  of  that  State. 
iiis  intention  was  to  become  a  resident  of  that  State  for  the  pur- 
pose of  getting  his  divorce,  and  to  that  end  to  do  all  that  was 
needful  to  make  him  such  a  resident,  and  I  find  he  became  a  resi- 
dent if.  as  a  matter  of  law,  such  finding  is  warranted  in  the  facts 
.above  stated." 

And  further,  that — 

"The  parties  had  never  lived  together  as  husband  and  wife 
in  South  Dakota,  nor  was  it  claimed  that  either  one  of  them  was 
■ever  in  that  State  except  as  above  .stated." 

With  reference  to  the  divorce  proceedings  in  South  Dakota 
it  was  found  as  follows: 

"The  wife  received  notice,  and  appeared  by  counsel  and  filed 
.an  answer,  den}ing  that  the  libellant  was  then  or  ever  had  been 
a  bona  fide  resident  of  South  Dakota,  or  that  she  had  deserted 
hun,  and  setting  up  cruelty  on  his  part  toward  her.  This  case 
was  settled,  so  far  as  the  parties  were  concerned,  in  accordance 
with  the  terms  of  the  agreement  of  April  22,  1892,  signed  by 
rthe  wife  and  consented  to  by  the  husband,  and,  for  the  purpose 


186  PRIVATE     INTERNATIONAL    LAW. 

of  carrying  out  her  agreement  "to  consent  to  the  granting  of 
divorce  for  desertion  in  South  Dakota,'  she  requested  her  counsel 
there  to  withdraw  her  appearance  in  that  suit,  which  they  did, 
and  thereafterwards,  namely,  on  May  6,  1892,  a  decree  granting 
the  divorce  was  passed,  and  v.ithin  a  day  or  two  afterwards  the 
said  Charles,  having  attained  the  object  of  his  sojourn  m  that 
State,  returned  to  this  Commonwealth,  where  he  resided  and  was 
domiciled  until  his  death,  which  occurred  in  October,  1897." 

By  the  agreement  of  April  22,  1892,  to  which  reference  is 
made  in  the  findmg  just  quoted,  it  was  stipulated  that  a  payment 
of  a  sum  of  money  should  be  made  by  Charles  S.  Andrews  to  his 
wife,  and  she  authorized  her  attorney  on  the  receipt  of  the  money 
to  execu.te  certain  papers,  and  it  was  then  provided  as  follows : 

"Fourth.  Upon  the  execution  of  such  papers  M.  F.  Dickin- 
son, Jr.,  is  authorized  in  my  name  to  consent  to  the  granting  of 
divorce  for  desertion  in  the  South  Dakota  court." 

Respecting  the  claim  of  Annie  Andrews  to  be  the  wife  of 
Charles  S.  Andrews,  it  was  found  as  follows : 

"Upon  his  return  to  this  State  he  soon  met  the  petitioner,  and 
on  January  [i,  1893,  they  were  married  in  Boston,  and  ever 
after  that  lived  as  husband  and  wife  in  Boston,  and  were  recog- 
nized as  such  by  all  until  his  death.  The  issue  of  this  marriage 
are  tv.'o  children,  still  living." 

It  was  additionally  found  that  Annie  Andrews  married 
Charles  S.  Andrews  in  good  faith  and  in  ignorance  of  any  illegality 
in  the  South  Dakota  divorce,  and  that  Kate  H.  Andrews,  as  far 
as  she  had  the  power  to  do  so,  had  connived  at  and  acquiesced  in 
the  South  Dakota  divorce,  had  preferred  no  claim  thereafter  to 
be  the  wife  of  Charles  S.  Andrews  until  his  death  when  in  this 
case  she  asserted  her  right  to  administei  his  estate  as  his  lawful 
widow. 

From  the  evidence  above  stated  the  ultimate  facts  were  found 
to  be  that  Andrews  had  always  retained  his  domicil  in  Massa- 
chusetts, had  gone  to  Dakota  for  the  purpose  of  obtaining  a 
divorce,  in  fraud  of  the  laws  of  Massachusetts,  and  with  the 
intention  of  returning  to  that  State  when  the  divorce  was  pro- 
cured, and  hence  that  he  had  never  acquired  a  boita  Hdc  domicil 
in  South  Dakota.  Applying  a  statute  of  the  State  of  Massa- 
chusetts forbidding  the  enforcement  in  that  State  of  a  divorce 
obtained  under  the  circumstances  stated,  it  was  decided  that  the 
decree  rendered  in  South  Dakota  was  void  in  the  State  of  Massa- 
chusetts, and   hence  that   Kate   H.  Andrews  was  the   widow  o£ 


DIVORCE.  187 

Charles  S.  Andrews  and  entitled  to  administer  his  estate.     176 
Massachusetts,  92. 

Mr.  Justice  White,  after  making  the  foregoing  statement,, 
dehvered  the  opinion  of  the  court. 

It  was  suggested  at  bar  that  this  court  was  without  jurisdic- 
tion. But  it  is  unquestionable  that  rights  under  the  Constitution 
of  the  United  States  were  expressly  and  in  due  time  asserted 
and  that  the  effect  of  the  judgment  was  to  deny  these  rights. 
Indeed,  when  the  argument  is  analyzed  we  think  it  is  apparent 
that  it  but  asserts  that,  as  the  court  below  committed  no  error  in 
deciding  the  Federal  controversy,  therefore  there  is  no  Federal 
question  for  review.  But  the  power  to  decide  whether  the  Federal 
issue  was  rightly  disposed  of  involves  the  exercise  of  jurisdiction. 
Penn  Mutual  Life  Insurance  Company  v.  Austin,  (1897)  168  U. 
S.  685.  As  the  Federal  question  was  not  unsubstantial  and  frivo- 
lous, we  pass  to  a  consideration  of  the  merits  of  the  case. 

The  statute  of  the  State  of  Massachusetts,  in  virtue  of  which 
the  court  refused  to  give  effect  to  the  judgment  of  divorce,  is  as 
follows; 

"Sec.  35.  A  divorce  decreed  in  another  State  or  country  ac- 
cording to  the  laws  thereof  by  a  court  having  jurisdiction  of  the 
cause  and  of  both  the  parties,  shall  be  valid  and  effectual  in  this 
Commonwealth  ;  but  if  an  inhabitant  of  this  Commonwealth  goes- 
into  another  State  or  country  to  obtain  a  divorce  for  a  cause 
which  occurred  here,  while  the  parties  resided  here,  or  for  a  cause 
which  would  not  autliorize  a  divorce  by  the  laws  of  this  Common- 
wealth, a  divorce  so  obtained  shall  be  of  no  force  or  effect  in  this 
Commonwealth."  2  Rev.  Laws  Mass.  1902,  ch.  152,  p.  1357; 
Pub.  Stat.  1882,  c.  146,  §  41. 

It  is  clear  that  this  statute,  as  a  general  rule,  directs  the 
couris  of  Massachusetts  to  give  effect  to  decrees  of  divorce  ren- 
dered in  another  State  or  countrv  bv  a  court  having  jurisdiction. 
It  is  equally  clear  that  the  statute  prohibits  an  inhabitant  of  Massa- 
chusetts from  going  into  another  State  to  obtain  a  divorce,  for  a 
cause  which  occurred  in  Massachusetts  whilst  the  parties  were 
domiciled  there,  or  for  a  cause  which  would  not  have  authorized 
a  divorce  by  the  law  of  Massachusetts,  and  that  the  statute  for- 
bids the  courts  of  Massachusetts  from  giving  effect  to  a  judg- 
ment of  divorce  obtained  in  violation  of  these  prohibitions.  That 
the  statute  establishes  a  rule  of  public  policy  is  undeniable.     Diil 


188  PRIVATE    INTERNATIONAL    LAW. 

the  court  fail  to  give  effect  to  Federal  rights  when  it  applied  the 
provisions  of  the  statute  to  this  case,  and,  therefore,  refused  to 
enforce  the  South  Dakota  decree?  In  other  words,  the  question 
for  decision  is,  does  the  statute  conflict  with  the  Constitution  of 
the  United  States?  In  coming  to  the  solution  of  this  question  it 
is  essential,  we  repeat,  to  bear  always  in  mind  that  the  prohibi- 
tions of  the  statute  are  directed  solely  to  citizens  of  Massachusetts 
domiciled  therein,  and  that  it  only  forbids  the  enforcement  in 
Massachusetts  of  a  divorce  obtained  in  another  State  by  a  citizen 
of  Massachusetts  who,  in  fraud  of  the  laws  of  the  State  of  Massa- 
chusetts, whilst  retaining  his  domicil,  goes  into  another  State 
for  the  purpose  of  there  procuring  a  decree  of  divorce. 

We  shall  test  the  constitutionality  of  the  statute,  first  by  a 
consideration  of  the  nature  of  the  contract  of  marriage  and  the 
authority  which  government  possesses  over  the  subject;  and, 
secondly,  by  the  application  of  the  principles  thus  to  be  developed 
to  the  case  in  hand. 

I.  That  marriage,  viewed  solely  as  a  civil  relation,  possesses 
elements  of  contract  is  obvious.  But  it  is  also  elementary  that 
marriage,  even  considering  it  as  only  a  civil  contract,  is  so  inter- 
woven with  the  very  fabric  of  society  that  it  cannot  be  entered 
into  except  as  authorized  by  law.  and  that  it  may  not,  when  once 
entered  into,  be  dissolved  by  the  mere  consent  of  the  parties.  It 
■would  be  superfluous  to  cite  the  many  authorities  establishing 
these  truisms,  and  we  therefore  are  content  to  excerpt  a  statement 
of  the  doctrine  on  the  subject  contained  in  the  opinion  of  this 
court  delivered  by  Mr.  Justice  Field,  in  Maynard  v.  Hill,  ( 1888) 
125  U.  S.  190: 

"Marriage,  as  creating  the  most  important  relation  in  life,  as 
having  more  to  do  with  the  morals  and  civilization  of  the  people 
than  anv  other  institution,  has  always  been  subject  to  the  control 
of  the  legislature.  That  body  prescribes  the  age  at  which  parties 
may  contract  to  marry,  the  procedure  or  form  essential  to  con- 
stitute marriage,  the  duties  and  obligations  it  creates,  its  effects 
upon  the  property  rights  of  both,  present  and  prospective,  and  the 
acts  which  may  constitute  grounds  for  its  dissolution."     (p.  205.) 

*  ;•:  *  >i:  *  *  *  *  * 

"It  is  also  to  be  observed  that,  whilst  marriage  is  often 
termed  by  text  writers  and  in  decisions  of  courts  a  civil  contract — 
generally  to  indicate  that  it  must  be  founded  upon  ihe  agreement 
of  the  parties,  and  does  not  require  any  religious  ceremony  for 
its  solemnization — it   is   something  more  than   a  mere   contract. 


DIVORCE.  189 

The  consent  of  the  parties  is  of  course  essential  to  its  existence, 
but  when  the  contract  to  marry  is  executed  by  the  marriage,  a 
relation  between  the  parties  is  created  wliich  they  cannot  clianpe. 
Otlier  contracts  may  he  modified,  restricted, or  enlarged,  or  entirely 
released  upon  the  consent  of  the  parties.  Not  so  with  marriage. 
The  relation  once  formed,  the  law  steps  in  and  holds  the  parties 
to  various  obligations  and  liabilities.  It  is  an  institution,  m  the 
maintenance  of  which  m  its  purity  the  public  is  deeply  interested, 
or  it  is  the  foundation  of  tlie  family  and  of  society,  without  which 
there  would  be  neither  civilization  nor  progress."     (p.  210.) 

It  follows  ihat  the  statute  in  question  was  but  the  exercise 
of  an  essential  attribute  of  government,  to  dispute  the  possession 
of  which  would  be  to  deny  the  authority  of  the  State  of  Massa- 
chusetts to  legislate  over  a  subject  inherently  domestic  in  its  nature 
and  upon  which  the  existence  of  civilized  society  depends.  True, 
it  is  asserted  that  the  result  just  above  indicated  will  not  neces- 
sarih  flow  from  the  conclusion  that  the  statute  is  repugnant  to 
the  Constitution  of  the  United  States.  The  decision  that  the 
Constitution  compels  the  State  of  Massachusetts  to  give  effect 
to  the  decree  of  divorce  rendered  in  South  Dakota  cannot,  it  is 
insisted,  in  the  nature  of  things  be  an  abridgment  of  the  authority 
of  the  State  of  Massachusetts  over  a  subject  within  its  legisla- 
tive power,  since  such  ruling  would  only  direct  the  enforcement 
of  a  decree  rendered  in  another  State  and  therefore  without  the 
territory  of  Massachusetts.  In  reason  it  cannot,  it  is  argued,  be 
held  to  the  contrary  without  disregading  the  distinction  between 
acts  which  are  done  within  and  those  which  are  performed  with- 
out the  territory  of  a  particular  State.  But  this  disregards  the 
fact  that  the  prohibitions  of  the  statute,  so  far  as  necessary  to  be 
considered  for  the  purposes  of  this  case,  are  directed,  not  against 
the  enforcement  of  divorces  obtained  in  other  States  as  to  persons 
domiciled  in  such  States,  but  against  the  execution  in  Massa- 
chusetts of  decrees  of  divorce  obtained  in  other  States  by  persons 
who  are  domiciled  in  Massachusetts  and  who  go  into  such  other 
States  with  the  purpose  of  practicing  a  fraud  upon  the  laws  of 
the  State  of  their  domicil ;  that  is,  to  procure  a  divorce  without 
obtaining  a  bona  fide  domicil  in  such  other  State.  This  being  the 
scope  of  the  statute,  it  is  evident,  as  we  shall  hereafter  have 
occasion  to  show,  that  the  argument,  whilst  apparently  con- 
ceding the  power  of  the  State  to  regulate  the  dissolution  of  mar- 
riage among  its  own  citizens,  yet,  in  substance,  necessarily  denies 
the  possession  of  such  power  by  the  State.     But,   ii  is   further 


190  PRIVATE    INTERNATIONAL    LAW. 

argued,  as  the  Constitution  of  the  United  States  is  the  paramount 
law,  and  as,  by  that  instrument,  the  State  of  Massachusetts  is 
compeUed  to  give  effect  to  the  decree,  it  follov/s  that  the  Constitu- 
tion of  the  United  States  must  prevail,  whatever  may  be  the  result 
of  enforcing  it. 

Before  coming  to  consider  the  clause  of  the  Constitution  of 
the  United  States  upon  which  the  proposition  is  rested,  let  us 
more  precisely  weigh  the  consequences  which  must  come  from 
upholding  the  contention,  not  only  as  it  may  abridge  the  authority 
of  the  State  of  Massachusetts,  but  as  it  may  concern  the  powers  of 
government  existing  under  the  Constitution,  whether  state  or 
Federal. 

It  cannot  be  doubted  that  if  a  State  may  not  forbid  the  en- 
forcement  within   its  borders  of   a   decree   of  divorce   procured 
by  its   own   citizens   who,   whilst   retaining  their  domicil   in  the 
prohibiting   State,   have   gone   into   another    State   to   procure   a 
divorce  in  fraud  of  the  laws  of  the  domicil,  that  the  existence 
of  all  efficacious  power  on  the  subject  of  divorce  will  be  at  an 
end.     This  must  follow  if  it  be  conceded  that  one  who  is  domi- 
ciled in  a  State  may  whenever  he  chooses  go  into  another  State 
and,    without    acquiring   a   bona   fide    domicil    therein,   obtain   a 
divorce,  and  then  compel  the  State  of  the  domicil  to  give  full 
effect  to  the  divorce  thus  fraudulently  procured.     Of  course,  the 
destruction  of  all  substantial  legislative  power  over  the  subject 
.of  the  dissolution  of  the  marriage  tie  which  would  result  would  be 
equally  applicable  to  every  State  in  the  Union.     Now,  as  it  is 
certain  that   the   Constitution   of  the   United    States   confers   no 
power  whatever  upon  the  government  of  the  United   States  to 
regulate  marriage  in  the  States  or  its  dissolution,  the  result  would 
be   that   the   Constitution   of   the    United    States    has    not    only 
deprived  the  States  of  power  on  the  subject,  but  whilst  doing  so 
has  delegated  no  authority  in  the  premises  to  the  government  of 
the  United  States.     It  would  thus  come  to  pass  that  the  govern- 
ments, state  and  Federal,  are  bereft  by  the  operation  of  the  Con- 
stiiution  of  the  United  States  of  a  power  which  must  belong  to 
and  somewhere  reside  in  every  civilized  government.     This  would 
"be  but  to  declare  that,  in  a  necessary  aspect,  government  had  been 
destroyed  by  the  adoption  of  the  Constitution.     And  such  result 
would  be  reached  by  holding  that  a  power  of  local  government 
vested  in  the  States  when  the  Constitution  was  adopted  had  been 
lost  to  the  States,  though  not  delegated  to  the  Federal  govern- 
ment, because  each  State  was  endowed  as  a  consequence  of  the 


DIVORCE.  191 

adoption  of  the  Constitution  witli  the  means  of  destroying  the 
authority  with  respect  to  the  dissohuion  of  the  marriage  tie  as  to 
every  other  State,  whilst  having  no  right  to  save  its  own  power 
in  the  preu'ises  from  annihilation. 

Rut  let  us  consider  the  particular  clause  of  the  Constitution 
of  the  United  States  which  is  relied  upon,  in  order  to  ascertain 
whether  such  an  abnoripal  and  disastrous  result  can  possibly  arise 
from  its  correct  application. 

The  provision  of  the  Constitution  of  the  United  States  in 
question  is  section  i  of  article  IV,  providing  that  "full  faith  and 
credit  shall  be  given  in  each  State  to  the  public  acts,  records,  and 
judicial  proceedings  of  every  other  State."  The  argument  is 
that,  even  although  the  Massachusetts  statute  but  announces  a 
rule  of  public  policy,  m  a  matter  purely  local,  nevertheless  it  vio- 
lates this  clause  of  the  Constitution.  The  decree  of  the  court  of 
another  State,  it  is  insisted,  and  not  the  relation  of  the  parties  to 
the  State  of  Massachusetts  and  their  subjection  to  its  lawful 
authority,  is  what  the  Constitution  of  the  United  States  considers 
in  requiring  the  State  of  Massachusetts  to  give  due  faith  and 
credit  to  the  judicial  proceedings  of  the  courts  of  other  States. 
This  proposition,  however,  must  rest  on  the  assumption  that  the 
Constitution  has  destroyed  those  rights  of  local  self-government 
wdiich  it  was  its  purpose  to  preserve.  It,  moreover,  presupposes 
that  the  determination  of  what  powers  are  reserved  and  what 
delegated  by  the  Constitution  is  to  be  ascertained  by  a  blind 
adiicrence  to  mere  form  m  disregard  of  the  substance  of  things. 
But  the  settled  rule  is  directly  to  the  contrary.  Reasoning  from 
analogy,  the  unsoundness  of  the  proposition  is  demonstrated. 
Thus,  in  enforcing  the  clause  of  the  Constitution  forbidding  a 
State  from  impairing  the  obligations  of  a  contract,  it  is  settled  by 
the  decisions  of  this  court,  although  a  State,  for  adequate  consid- 
eration, may  have  executed  a  contract  sanctioning  the  carrying  on 
of  a  lottery  for  a  stated  term,  no  contract  protected  from  impair- 
ment under  the  Constitution  results,  because,  disregarding  the 
mere  form  and  looking  at  substance,  a  State  may  not,  by  the  appli- 
-cation  of  the  contract  clause  of  the  Constitution,  be  shorn  of  an 
•ever  inherent  authority  to  preserve  the  i)ublic  morals  by  suppress- 
ing lotteries.  Stoiic  v.  Alississif^pi,  loi  U.  S.  814;  Douglas  v. 
Kentucky,  168  U.  S.  488.  In  other  words,  the. doctrine  is.  that 
although  a  particular  provision  of  the  Constitution  may  seemingly 
be  applicable,  its  controlling  effect  is  limited  by  the  essential 
nature  of  the  powers  of  government  reserved  to  the  States  when 


192  PRIVATE     INTERNATIONAL    LAW. 

the  Constitution  was  adopted.  In  view  of  the  rule  thus  applied 
to  the  contract  clause  of  the  Constitution,  we  could  not  maintain, 
the  claim  now  made  as  to  the  effect  of  the  due  faith  and  credit 
clause,  without  saying  that  the  States  must,  in  the  nature  of 
things,  always  possess  the  power  to  legislate  for  the  preservation 
of  the  morals  of  society,  but  that  they  need  not  have  the  continued 
authority  lo  save  society  from  destruction. 

Resort  to  reasoning  by  analogy,  however,  is  not  required,, 
since  the  principle  wb.ich  has  been  applied  to  the  contract  clause 
has  been  likewise  enforced  as  to  the  due  faith  and  credit  clause. 

In  Thompson  v.  I/Vhitiuaii,  ( 1874)  18  Wall.  457,  the  action  in 
the  court  below  was  trespass  for  the  conversion  of  a  sloop,  her 
tackle,  furniture,  etc.,  upon  a  seizure  for  an  alleged  violation  of 
a  statute  of  the  State  of  New  Jersey.  By  special  plea  in  bar  the 
defendant  set  up  that  the  seizure  was  made  within  the  limits  of 
a  named  county  in  the  State  of  New  Jersey,  and  by  answer  to  this, 
plea  the  plaintiff  took  issue  as  to  the  place  of  seizure,  thus  chal- 
lenging the  jurisdiction  of  the  justices  who  had  tried  the  mfor- 
mation  and  decreed  the  forfeiture  and  sale  of  the  property.  The 
precise  point  in\olved  in  the  case,  as  presented  in  this  court,  was 
whether  or  not  error  bad  been  committed  by  the  trial  court  in 
receiving  evidence  to  contradict  the  record  of  the  New  Jersey 
judgment  as  to  jurisdictional  facts  asserted  therein,  and  especially 
as  to  facts  stated  to  have  been  passed  upon  by  the  court  which 
had  rendered  the  judgment.  It  was  contended  that  to  permit  the 
jurisdictional  facts,  which  were  foreclosed  by  the  judgment,  tO' 
be  reexamined  would  be  a  violation  of  the  due  faith  and  credit 
clause  of  the  Constitution.  This  court,  however,  decided  to  the 
contrary,  saying . 

"We  think  it  clear  that  the  jurisdiction  of  the  court  by  which 
a  judgment  is  rendered  in  any  State  may  be  questioned  in  a 
collateral  proceeding  m  another  State,  notwithstanding  the  pro- 
visioi;  of  the  fourth  article  of  the  Constitution  and  the  law  of 
1790,  and  notwithstandmg  the  averments  contained  in  the  record 
of  the  judgment  itself."' 

The  ground  upon  which  this  conclusion  was  predicated  is 
thus  embodied  in  an  excerpt  made  from  the  opinion  delivered 
by  Mr.  Chief  Justice  Marshall,  speaking  for  the  court,  in  Rose  v. 
Himely,  4  Cranch,  241,  269,  wheie  it  was  said : 

"Upon  principle,  it  would  seem,  that  the  operation  of  every 
judgment  must  depend  on  the  power  of  the  court  to  render  that 
judgment;  or,  in  other  words,  on  its  jurisdiction  over  the  subject- 


DIVORCE.  193 

matter  which  it  has  determined.  In  some  cases,  ihat  jurisdiction, 
unquestionably,  depends  as  well  on  tlie  state  of  the  thing,  as  on 
the  constitution  of  the  court.  If,  by  any  means  whatever,  a  prize 
court  should  lie  induced,  to  condenni,  as  prize  of  war.  a  vessel 
which  was  never  captured,  it  could  not  be  contended  tl^at  this 
condemnation  operated  a  change  of  property.  Upon  principle, 
then,  it  would  seem,  that,  to  a  certain  extent,  the  capacity  of 
the  court  to  act  upon  the  thing  condemned,  arising  from  its 
being  within,  or  without  their  jurisdiction,  as  well  as  the  constitu- 
tion of  the  court,  may  l)e  considered  by  that  tribunal  which  is  to 
decide  on  the  effect  of  the  sentence." 

And  the  same  principle,  in  a  different  aspect,  was  applied  in 
(Visconsin  v.  Pelican  Insurance  Co.,  (1888)  127  U.  S.  265.  In 
that  case  the  State  of  Wisconsin  had  obtained  a  money  judgment 
in  its  own  courts  against  the  Pelican  Insurance  Company,  a 
Louisiana  corporation.  Availing  itself  of  the  original  jutisdic- 
tion  of  this  court,  the  State  of  Wisconsin  brought  in  this  court 
an  action  of  debt  upon  the  judgment  in  question.  The  answer  of 
the  defendant  was  to  the  effect  that  the  judgment  was  not  entitled 
to  extra-territorial  enforcement,  because  the  claim  upon  which 
it  was  based  was  a  penalty  imposed  upon  the  corporation  for  an 
alleged  violation  of  the  insurance  laws  of  the  State  of  Wisconsin. 
Tl\e  answer  having  been  demurred  to,  it  was,  of  course,  conceded 
that  the  claim  which  was  merged  in  the  judgment  was  such  a 
penalty.  This  court,  having  concluded  that  ordinarily  a  penalty 
imposed  by  the  laws  of  one  State  could  have  no  extra-territorial 
operation,  came  then  to  consider  whether,  under  the  due  faith 
and  credit  clause  of  the  Constitution  of  the  United  States,  a 
judgment  rendered  upon  a  penal  statute  was  entitled  to  recogni- 
tion outside  of  the  State  in  which  it  had  been  rendered,  becairse 
the  character  of  the  cause  of  action  had  been  merged  in  the  judg- 
ment as  such.  In  declining  to  enforce  the  Wisconsin  judgment 
and  in  deciding  that,  notwithstanding  the  judgment  and  the  due 
faith  and  credit  clause  of  the  Constitution,  the  power  existed 
to  look  back  of  the  judgment  and  ascertain  whether  the  claim 
which  had  entered  into  it  was  one  susceptible  of  being  enforced 
in  another  State,  the"  court,  speaking  through  Mr.  Justice  Gray, 
said  (d.  291 )  : 

"The  application  of  the   rule   to   the  courts  of  the   several 

States  and  of  the  United  States  is  not  affected  by  the  provisions 

of  the  Constitution   and   of  the  act   of   Congress,   by   which   the 

judgments  of  the  courts  of  any  State  «re  to  have  such  faith  and 

13 


]94  PRIVAT..     INTERNATIONAL    LAW. 

credit  given  to  them  in  every  court  within  the  United  States  as 
they  have  by  law  or  usage  in  the  State  in  which  they  were  ren- 
dered. Constitution,  art.  4.  sec.  i  ;  act  of  May  26,  1790,  chap.  11, 
I  Stat.  122;  Rev.  Stat.  §  905. 

"Those  provisions  estabhsh  a  rule  of  evidence,  rathe^  than 
of  jurisdiction.  While  they  make  the  record  of  a  judgment, 
rendered  after  due  notice  in  one  State,  conclusive  evidence  in 
the  courts  of  another  State,  or  of  the  United  States,  of  the  mattei 
adjudged,  they  do  not  affect  the  jurisdiction,  either  of  the  court 
in  which  the  judgment  is  rendered,  or  of  the  court  in  which  it  is 
oti'ered  in  evidence.  Judgments  recovered  in  one  State,  of  the 
Union,  when  proved  in  the  courts  of  another  government,  whether 
state  or  national,  within  the  United  States,  differ  from  judg- 
ments recovered  in  a  foreign  country  in  no  other  respect  than  in 
not  being  reexaminable  on  their  merits,  nor  impeachable  for 
fraud  in  obtaining  them,  if  rendered  by  a  court  having  jurisdiction 
of  the  cause  and  of  tlie  parties.     Hanlcy  v.  Donoghuc,  116  U.  S. 

I.  4- 

"In  the  words  of  ^Ir.  Justice  Story,  cited  and  approved  by 

Mr.  Justice  Bradley  speaking  for  this  court,  'The  Constitution 
did  not  mean  to  confer  any  new  power  upon  the  States,  but  sim- 
ply to  regulate  the  eft'ect  of  their  acknowledged  jurisdiction  over 
persons  and  things  within  their  territory.  It  did  not  make  the 
judgments  of  other  States  domestic  judgments  to  ail  intents  and 
purposes,  1)Ut  only  gave  a  general  validity,  faith  and  credit  to 
them  as  evidence.  No  execution  can  issue  upon  such  judgments 
without  a  new  suit  in  the  tribunals  of  other  States.  And  they 
-enjoy  not  the  right  of  priority  or  lien  which  they  have  in  the 
State  where  they  are  pronounced,  but  that  only  which  the  le.x  fori 
gives  to  them  by  its  own  laws  in  their  character  of  foreign  judg- 
ments.'   Story's  Conflict  of  Laws,  §  609;  Thompson  v.  IVhitman, 

18  Wall.  457.  462,  463- 

'"A  jucigment  recovered  in  one  State,  as  was  said  by  Mr.  Jus- 
tice Wayne,  delivering  an  earlier  judgment  of  this  court,  'does  not 
carry  with  it,  into  another  State,  the  efficacy  of  a  judgment  upon 
property  or  persons,  to  be  enforced  by  execution.  To  give  it  the 
force  of'  a  judgment  in  another  State,  it  must  be  made  a  judg- 
ment there;  and  can  only  be  executed  in  the  latter  as  its  laws 
may  permit.'    McElmoylc  v.  Cohen,  13  Pet.  312,  325. 

"The  essential  nature  and  real  foundation  of  a  cause  of  action 
are  not  changed  by  recovering  judgment  upon  it ;  and  the  tech- 
nical rules,  which  regard   the  original   claim   as   merged   in   the 


DIVORCE.  195 

judgment,  and  the  judgment  as  implying  a  promise  by  the  de- 
fendant to  pay  it,  do  not  preclude  a  court,  to  which  a  judgment 
IS  presented  for  affirmative  action  (while  it  cannot  go  behind  the 
judgment  for  the  purpose  of  examining  into  the  validity  of  the 
claim),  from  ascertaining  whether  the  claim  is  really  one  of  such 
a  nature  that  the  court  is  authorized  to  enforce  it." 

2.  When  the  principles  which  we  have  above  demonsirated 
by  reason  and  authority  are  applied  to  the  question  in  hand,  its 
solution  is  free  from  difficulty.  As  the  State  of  Massachusetts 
had  exclusive  jurisdiction  over  its  citizens  concerning  the  mar- 
riage tie  and  its  dissolution,  and  consequently  the  authority  to 
prohibit  them  from  perpetrating  a  fraud  upon  the  law  of  their 
domicil  liy  temporarily  sojourning  in  another  State,  and  there, 
without  acquiring  a  bona  fide  domicil,  procuring  a  decree  of 
divorce,  it  follows  that  the  South  Dakota  decree  relied  upon  was 
rendered  by  a  court  without  jurisdiction,  and  hence  the  due 
faiUi  and  credit  clause  of  the  Constitution  of  the  United  States 
did  not  require  the  enforcement  of  such  decree  in  the  State  of 
Massachusetts  against  the  public  policy  of  that  State  as  expressed 
m  its  statutes.  Indeed,  this  application  of  the  general  principle 
IS  not  open  to  dispute,  since  it  has  been  directly  sustained  by 
decisions  of  this  court.  Bell  v.  Bell,  i8i  U.  S.  175:  Streitivolf  v. 
Slreitwolf,  181  U.  S.  179.  In  each  of  these  cases  it  was  sought 
in  one  State  to  enforce  a  decree  of  divorce  rendered  in  another 
State,  and  the  authority  of  the  due  faith  and  credit  clause  of 
the  Constitution  was  invoked  for  that  purpose.  It  having  been 
established  in  each  case  that  at  the  time  the  divorce  proceedings 
were  conmienced.  the  plaintiff  in  the  proceedings  had  no  bona 
fide  domicil  within  the  State  where  the  decree  of  divorce  was 
rendered,  it  was  held,  applying  the  principle  announced  in  Thomp- 
son V.  IVhitnian,  18  Wall.  457,  supra,  that  the  question  of  juris- 
diction was  open  for  consideration,  and  that  as  in  any  event 
domicil  was  essential  to  confer  jurisdiction,  the  due  faith  and 
credit  clause  did  not  require  recognition  of  such  decree  outside  of 
the  Slate  in  which  it  had  been  rendered.  A  like  rule,  by  inverse 
reasoning,  was  also  api)lied  in  the  case  of  Athcrton  v.  Atherfon, 
i8t  U.  S.  T55.  There  a  decree  of  divorce  was  rendered  in  Ken- 
tucky in  favcr  of  a  husband  who  had  commenced  proceedmgs 
in  Kentucky  against  his  wife,  then  a  resident  of  the  Slate  of 
New  York.  The  courts  of  the  latter  State  having  in  substance 
refused  to  give  effect  to  the  KentucKy  divorce,  the  question 
whether  such  refusal  constituted  a  violation  of  the  due  faith  and 


196  PRIVATE    INTERNATIONAL    LAW. 

credit  clause  of  the  Constitution  was  brought  to  this  court  for 
decision.  It  having  been  estabhshed  that  Kentucky  was  the 
doraicil  of  the  husband  and  had  ever  been  the  matrimonial  domicil, 
and,  therefore,  that  the  courts  of  Kentucky  had  jurisdiction  over 
the  subject-rnatter,  it  was  held  that  the  due  faith  and  credit 
clause  of  the  Constitution  of  the  United  States  imposed  upon  the 
courts  of  Xew  York  the  duty  of  giving  effect  to  the  decree  of 
divorce  which  had  been  rendered  in  Kentucky. 

But  it  is  said  that  the  decrees  of  divorce  which  were  under 
consideration  in  Bell  v.  Bell  and  Sfreihvolf  v.  Streihvolf  were 
renderd  in  ex  t^artc  proceedings,  the  defendants  having  been 
summoned  by  substituted  service,  and  making  no  appearance ; 
hence,  the  case  now  under  consideration  is  taken  out  of  the  rule 
announced  in  those  cases,  since  here  the  defendant  appeared 
and  consequently  became  subject  to  the  jurisdiction  of  the  court 
by  which  the  decree  of  divorce  was  rendered.  But  this  disre- 
gards the  fact  that  the  rulings  in  the  cases  referred  to  were  pre- 
dicated upon  the  proposition  that  jurisdiction  over  the  subject- 
matter  depended  upon  domicil,  and  without  such  domicil  there 
was  no  authority  to  decree  a  divorce.  This  becomes  apparent 
when  it  is  considered  that  the  cases  referred  to  were  directly 
rested  upon  the  authority  of  Thonipson  v.  IVhifnian,  supra, 
where  the  jurisdiction  was  assailed,  not  because  there  was  no 
power  in  the  court  to  operate,  by  ex  parte  proceedings,  on  the 
res,  if  jurisdiction  existed,  but  solely  because  the  res  was  not  at 
the  time  of  its  seizure  within  the  territorial  sway  of  the  court, 
and  hence  was  not  a  subject-matter  over  which  the  court  could 
exercise  jurisdiction  by  ex  parte  or  other  proceedings.  And  this 
view  is  emphasized  by  a  consideration  of  the  ruling  in  IViseonsin 
V.  Pelican  Insurance  Company,  supra,  where  the  judgment  was 
one  inter  partes,  and  yet  it  was  held  that,  in  so  far  as  the  extra 
territorial  effect  of  the  judgment  was  concerned,  the  jurisdiction 
over  the  subject-matter  of  the  State  and  its  courts  was  open  to 
inquiry,  and  if  jurisdiction  did  not  exist  the  enforcement  of  the 
judgment  was  not  compelled  by  reason  of  the  due  faith  and  credit 
clause  of  tlie  Constitution. 

Indeed,  the  argument  by  which  it  is  sought  to  take  this  case 
out  of  the  rule  laid  down  in  the  cases  just  referred  to  and  which 
was  applied  to  decrees  of  divorce  in  the  Bell  and  Streitwolf  cases 
practically  invokes  the  overruling  of  those  cases,  and  in  effect, 
also,  the  overthrow  of  the  decision  of  the  Atherton  ^ase,  since, 
in  reason,  it  but  insists  that  the  rule  announced  in  those  cases 


DIVORCE.  197 

should  not  be  applied  merely  because  of  a  distinction  without  a 
difference. 

This  is  demonstrated  as  to  Thompson  v.  Whitman  and  Wis- 
consin V.  Pelican  Insurance  Co.,  by  the  considerations  already 
adverted  to.  It  becomes  clear,  also,  that  such  is  the  result  of  the 
argument  as  to  Bell  v.  Bell  and  Strcitwolf  v.  Streitivolf,  when  it 
IS  considered  that  in  both  those  cases  it  was  conceded,  arguendo, 
that  the  power  to  decree  the  divorce  in  ex  parte  proceedings  by 
substituted  service  would  have  obtained  if  there  had  been  bona 
fide  domicil.  The  rulings  made  in  the  case  referred  to  hence 
rested  not  at  all  upon  the  fact  that  the  proceedings  were  ex  parte, 
but  on  the  premise  that  there  being  no  domicil  there  could  be  no 
jurisdiction.  True  it  is,  that  in  Bell  v.  Bell  and  Streitivolf  v. 
Streiizvolf  the  question  was  reserved  whether  jurisdiction  to 
render  a  divorce  having  extra-territorial  effect  could  be  acquired 
by  a  mere  domicil  in  the  State  of  the  party  plaintiff,  where  there 
had  been  no  matrimonial  domicil  in -such  State — a  question  also 
reserved  here.  But  the  fact  that  this  question  was  reserved 
does  not  affect  the  issue  now  mvolved,  since  those  cases  pro- 
ceeded, as  does  this,  upon  the  hypothesis  conceded,  arguendo, 
that  if  there  had  been  domicil  there  would  have  been  jurisdic- 
tion, whether  the  proceedings  were  ex  parte  or  not,  and  there- 
fore the  ruling  on  both  cases  was  that  at  least  domicil  was  in 
any  event  the  inherent  element  upon  which  the  jurisdiction  must 
rest,  whether  the  proceedings  were  ex  parte  or  inter  partes.  And 
these  conclusions  are  rendered  certain  when  the  decision  in 
Alherton  v.  Atherton  is  taken  into  view,  for  there,  although  the 
proceeding  was  ex  parte,  as  it  was  found  that  bona  fide  domicil, 
both  personal  and  matrimonial,  existed  in  Kentucky,  jurisdiction 
over  the  subject-matter  was  held  to  obtain,  and  the  duty  to 
enforce  the  decree  of  divorce  was  consequently  declared.  Nor 
IS  there  force  in  the  suggestion  that  because  in  the  case  before  us 
the  \vife  appeared,  hence  the  South  Dakota  court  had  jurisdic- 
tion to  decree  the  divorce.  The  contention  stated  must  rest  on 
the  premise  that  the  authority  of  the  court  depended  on  the 
appearance  of  the  parties  and  not  on  its  jurisdiction  over  the 
subject-matter — that  is,  bona  fide  domicil,  irrespective  of  the 
appearance  of  the  parties.  Here  again  the  argument,  if  sus- 
tained, would  involve  the  overruling  of  Bell  v.  Bell  and  Strcit- 
wolf V.  Streitivolf.  As  in  each  of  the  cases  jurisdiction  was 
conferred,  as  far  as  it  could  ])e  given,  '^y  the  appearance  of  the 
plaintiff  who  brought  the  suit,  it  follows  that  the  decision  that 


198  PRIVATE    INTERNATIONAL    LAW. 

there  was  no  jurisdiction  oecause  of  the  want  of  bona  fide  domicil 
was  a  ruhng  that  in  its  absence  there  could  be  no  jurisdiction 
over  the  subject-matter  irrespective  of  the  appearance  of  the 
party  by  wliom  the  suit  was  brought.  But  it  is  obvious  that  the 
inadequacy  of  the  appearance  or  consent  of  one  person  to  confer 
jurisdiction  over  a  subject-matter  not  resting  on  consent  inckides 
necessarily  the  want  of  power  of  both  parties  to  endow  the  court 
with  jurisdiction  over  a  subject-matter,  which  appearance  or 
consent  could  not  give.  Indeed,  the  argument  but  ignores  the 
nature  of  the  marriage  contract  and  the  legislative  control  over  its 
dissolution  which  was  pointed  out  at  the  outset.  The  principle 
dominating  the  subject  is  that  the  marriage  relation  is  so  inter- 
woven vi^ith  public  policy  that  the  consent  of  the  parties  is  im- 
potent to  dissolve  it  contrary  to  the  law  of  the  domicil.  The 
proposition  relied  upon,  if  maintained,  would  involve  this  con- 
tradiction in  terms:  that  marriage  may  not  be  dissolved  by  the 
consent  of  tlie  parties,  but  that  they  can,  by  their  consent,  accom- 
plish the  dissolution  of  the  marriage  tie  by  appearing  in  a  court 
foreign  to  their  domicil  and  wholly  wanting  in  jurisdiction,  and 
may  subsequently  compel  the  courts  of  the  domicil  to  give  effect 
to  such  judgment  despite  the  prohibitions  of  the  law  of  the 
domicil  and  the  rule  of  public  policy  by  which  it  is  enforced. 

Although  it  is  not  essential  to  the  question  before  us,  which 
calls  upon  us  only  to  determine  whether  the  decree  of  divorce 
rendered  in  South  Dakota  was  entitled  to  extra-territorial  effect, 
we  observe,  in  passing,  that  the  statute  of  South  Dakota  made 
domicil,  and  not  mere  residence,  the  basis  of  divorce  proceed- 
ings in  that  State.  As  without  reference  to  the  statute  of  Soutii 
Dakota  and  in  any  event  domicil  in  that  State  was  essential  to 
give  jurisdiction  to  the  courts  of  such  State  to  render  a  decree  of 
divorce  which  would  have  extra-territorial  effect,  and  as  the 
appearance  of  one  or  both  of  the  parties  to  a  divorce  proceed- 
ing could  not  suffice  to  confer  jurisdiction  over  the  subject-mat- 
ter where  it  was  wanting  because  of  the  absence  of  domicil 
within  the  State,  we  conclude  that  no  violation  of  the  due  faith 
and  credit  clause  of  the  Constitution  of  the  United  States  arose 
from  the  action  of  the  Supreme  Judicial  Court  of  Massachusetts 
in  obeying  the  command  of  the  state  statute  and  refusing  to  give 
effect  to  the  decree  of  divorce  in  question. 

Affirmed. 

Mr.  Justice  Brewer,  Mr.  Justice  Shiras  and  Mr.  Justice 
Peckham  dissent. 


DIVORCE.  199 

Mr.  Justice  Holmes,  not  being  a  member  of  the  court  when 
the  case  was  argued,  takes  no  part.^* 


"Law  Applied  to  Divorce  Proceedings. — Whether  or  not  a  particular 
act  or  omission  is  a  ground  for  (Hvorce  depends  upon  the  law  of  the 
forum.  The  law  of  the  forum  is  the  law  of  the  place  where  the  party  is 
domiciled  at  the  time  of  divorce  proceedings.  Hunt  v.  Hunt,  73  N.  V.  217, 
28  Am.  Rep.  129;  C  alburn  v.  Col  bunt,  70  Mich.  647,  38  N.  W.  607.  See 
Minor  Conflict  of  Laxcs.  183.  A  divorce  is  granted  only  for  a  cause  recog- 
nized by  the  law  of  the  forum.  Dorscy  v.  Dorscy.  7  Watts  349,  32  Am.  Dec. 
767.     See  Succession  of  Benton,  59  L.  R.  A.  133,  and  notes. 

It  is  well  established  that  the  mere  fact  that  the  marital  offense  did 
not  occur  at  the  forum  does  not  defeat  jurisdiction.  The  state  has  the 
power  to  determine  for  what  causes  divorce  will  be  granted,  and  in  this 
way  the  court  may  or  may  not  grant  a  divorce  for  an  offense  that  occurred 
in  another  state  or  country.  Cheever  v.  Wilson,  g  Wall.  108,  /p  L.  Ed. 
604;  Cheely  v.  Clayton,  no  U.  S.  701,  28  L.  Ed.  298;  Thompson  v.  State, 28 
Ala.  12:  Shazu  v.  Shazc.  98  Mass.  138:  Ditson  v.  Ditson,  4  R.  I.  87;  Dun- 
ham V.  Dunham,  162'  111.  589,  35  L.  R.  A.  70. 

Domicil  of  the  Parties. — To  give  the  court  jurisdiction  to  grant  divorce, 
at  least  one  of  the  parties  must  be  domiciled  within  the  state.  De  Meli  v. 
De  Meli,  120  N.  Y.  485,  24  N.  E.  996;  Watkins  v.  Wat  kins,  135  Mass.  83: 
Colburn  v.  Colburn,  70  Mich.  647:  Van  Fossen  v.  State,  37  Ohio  St.  317; 
41  .Im.  Rep.  307. 

By  the  weight  of  authority,  whenever  it  is  proper  or  necessary,  a  wife 
may  acquire  a  separate  domicil  for  the  purposes  of  a  suit  by  her  for 
divorce.  Cheever  v.  Wilson.  9  IV all.  108,  19  L.  Ed.  604;  Chapman  v.  Chap- 
man, 129  III.  386.  21  N.  E.  806:  Dunham  v.  Dunham.  162  III.  389.  33  L.  R. 
A.  70;  Ditson  t'.  Ditson,  4  R.  I.  87;  Hill  v.  Hill,  166  III.  34,  46  N.  E.  73i- 

According  to  international  law,  the  domicil  for  the  time  being  of  the 
married  pair  afifords   the   only  true   test   of  jurisdiction   to   dissolve   their 

marriage.      Lc   Mcsuner   v.    Lc   Mcsuricr,   Appeal    Cases   317- 

(1895).  But  to  grant  a  qualified  divorce,  the  court  may  take  jurisdiction 
though  the  husband  is  domiciled  in  another  country.  Armytage  v.  Army- 
tage,  Probate  178.   (1898). 

A  divorce  granted  to  parties  not  domiciled  within  the  state  is  not 
entitled  to  extra-territorial  recognition,  and  as  to  other  states,  the  decree 
is  a  nullity,  and  the  divorced  persons  who  marry  again  may  be  prosecuted 
for  polygamy.     State  v.  Armington,  23  Minn.  29. 

The  jurisdiction  of  the  court  to  grant  divorce  is  not  affected  by — (i) 
the  residence  of  the  parties,  or  (2)  the  allegiance  of  the  parties,  or  (3) 
the  domicil  of  the  parties  at  the  time  of  the  marriage,  or  (4)  the  place  of 
the  marriage,  or  (5)  the  place  where  the  offence  in  respect  of  which 
divorce  is  sought,  is  committed.  Dicev  Conflict  of  Laiv-s.  P.  269.  Frank- 
lin V.  Franklin,  154  Mass.  313.  28  N.  E.  68 1 :  Firth  v.  Firth,  30  X.  J.  Eq. 
137;  Ditson  V.  Ditson,  4  R.  I.  87:  Jones  v.  Jones,  67  Miss.  193:  Succession 
of  Benton,  106  La.  494,  39  L.  R.  A.  133.  and  notes. 

Service  of  Process  Upon  Defendant.— Where  the  defendant  is  absent 
from  the  state,  the  statutes  of  most  of  the  states  provide  for  extra-terri- 
torial service,  either  actual  or  constructive.  Cheely  Z'.  Clayton,  no  U.  S. 
701;  Ditson  V.  Ditson,  4  R.  I.  87:  Pretty  man  7:  Pretty  man.  123  hid.  149- 
25  N.  B.  179;  Some  states  have  refused  to  recognize  divorces  granted 
where  only  one  of  the  parties  was  before  the  court.  People  v.  Baker.  76 
N.   Y.  78;  Atherton  v.  Atherton,  135  N.   Y.  129,  49  N.  E.  933:  Harris  v. 


200  PRIVATE    INTERNATIONAL    LAW.  I 

Harris,  115  N.  C.  587,  20  S.  3.  187:  Doerr  v.  Porsythc,  50  Ohio  St.  726,  35 
N.  E.  1033;  Dunham  v.  Dunham,  162  III.  389,  44  N.  B-  841;  Cummington  v. 
Belcher  town,  149  Mass.  223. 

If  the  defendant  is  a  non-resident,  and  has  not  been  served  with 
process  within  the  state,  and  has  not  appeared,  the  decree  must  be  con- 
fined to  a  severance  of  the  marrital  relation,  and  the  court  cannot  decree 
alimony,  nor  decree  custody  of  children  if  the  children  are  beyond  the 
jurisdiction  of  the  state,  nor  impose  upon  the  defendant  a  disability  to 
marry  again.  Cooper  v.  Reynolds,  10  Wall.  308:  Garner  v.  Garner,  36  Mo. 
127;  De  La  Montanya  v.  De  La  Montanya,  112  Cal.  loi,  32  L.  R.  A.  82; 
Rodgers  v.  Rodger s,  56  Kan.  483,  43  Pac.  Rep.  779;  Doiv  v.  Blake,  148  III. 
76,  33  N.  E.  761;  Bullock  V.  Bullock,  31  N.  J.  Eg.  444,  27  Atl.  433;  Thurs- 
ton V.  Thurston,  38  Minn.  279,  39  N.  W.  1017 ;  Kline  v.  Kline,  37  Iowa  386, 
10  N.  W.  823. 


BANKRUPTCY. 

IN  RE  WAITE,   1885. 
[99  N.  Y.  433.] 

1.  Title   of   Foreign   Assignees   in     4.     Voluntary  Assignments  in  Bank- 

Bankruptcy,  ruptcy. 

2.  Extra-territorial  Effect  of  Bank-    5.     Rights  of  Creditors. 

rupt  an'd  Insolvent  Laws.  6.     Administration  in  Bankruptcy. 

3.  Involuntary   Assignments   in 

Bankruptcy. 

Earl,  J.  On  the  15th  day  of  October,  1881,  Haynes  & 
Sanger,  a  firm  doing  business  in  the  city  of  New  York,  having 
become  insolvent,  made  a  general  assignment,  for  the  benefit 
of  their  creditors,  to  Charles  Waite,  who  was  a  member  of  the 
firm  of  Pendle  &  Waite,  and  in  their  assignment  preferred  thai 
firm  as  creditors  for  a  large  amoimt.  Pendle  &  Waite  did  busi- 
ness in  New  York  and  London,  Waite  being  a  citizen  of  this 
country  residing  in  the  city  of  New  York  and  having  charge  of 
the  business  of  his  firm  there,  and  Pendle  being  a  citizen  of  Eng- 
land and  having  charge  of  the  firm  business  there.  That  firm 
became  insolvent  and  suspended  business  in  England  in  February, 
1882,  and  Waite  then  went  to  England,  and  theie  he  and  Pendle 
filed  a  petition  in  the  London  Court  of  Bankruptcy,  in  which 
they  recited  their  inability  to  pay  their  debts  in  full,  and  that  they 
were  "desirous  of  instituting  proceedings  for  the  liquidation  of 
their  affairs  by  arrangement  or  composition  with  their  creditors, 
and  hereby  submit  to  the  jurisdiction  of  this  court  in  the  matter 
of  stich  proceeding."  Waite  signed  the  petition  in  person,  and 
through  his  counsel  at  once  secured  tht  appointment  of  Schofield 
as  receiver,  in  bankruptcy,  of  the  firm  property. 


BANKRUPTCY  201 

Liquidation  by  arrangement  or  composition  is  a  proceeding 
iindei  the  English  Bankruptcy  Act  which  provides  that  the 
fiHng  of  such  a  petition  is  an  act  of  ])ankruptcy  ;  that  a  com- 
promise proposition  may  be  made  by  a  del)tor,  and  that  if  sucn 
proposition  shall  be  accepted  by  the  creditors  at  a  general  meet- 
ing, and  then  confirmed  at  a  second  general  meeting,  and  regis- 
tered by  the  court,  it  becomes  binding  and  may  be  carried  out 
under  the  supervision  of  the  court;  that  if  it  appears  to  the  court 
on  satisfactory  evidence  that  a  com.position  cannot  in  consequence 
of  legal  difficulties,  or  for  any  othei  sufficient  cause,  proceeil 
without  injustice  or  undue  delay  to  the  creditors,  or  the  debtor, 
the  court  may  adjudge  the  debtor  a  bankrupt  and  proceedings  may 
be  had  accordingly,  and  that  the  title  of  the  trustee  in  bank- 
ruptcy, when  appointed,  relates  back  to  the  time  of  the  com- 
mission of  the  act  of  bankruptcy. 

For  reasons  which  it  is  unnecessary  now  to  consider  or  relate, 
the  composition  failed,  and  then  upon  the  application  of  creditors, 
which  was  opposed  by  Waite,  Pendle  &.  Waite  were  adjudged 
bankrupts,  and  SchofieM  v/as  appointed  trustee  of  the  firm  prop- 
erty. By  the  English  law,  the  due  appointment  of  a  trustee  in 
bankruptcy,  under  the  English  Bankruptcy  Act,  transfers  to  the 
trustee  all  the  personal  property  of  the  bankrupt  wherever  situated, 
whether  in  Great  IVitain  or  elsewhere. 

Notwithstanding  his  bankruptcy,  Waite  continued  to  act  as 
assignee  cf  Ilaynes  &  Sanger  and  converted  the  assets  of  that 
firm  into  money,  and  under  the  preference  given  to  his  firm  paid 
himself  for  the  firm  of  Pendle  &  Waite  the  sum  of  $14,333.70 
He  paid  no  portion  of  that  sum  to  Pendle  or  to  the  creditors 
of  his  firn^..  the  American  creditors  of  such  firm  having  been 
fully  paid  from  other  assets  of  the  firm. 

After  all  this,  Waite  filed  his  petition  in  the  Court  of  Com- 
mon Pleas  of  the  city  of  New  York  for  a  settlement  of  his 
accoujits  as  assignee,  and  citations  were  issued,  served  and 
published  for  that  purpose,  and  a  referee  was  appointed  to  take 
and  state  his  accounts.  In  his  accounts  he  entered  and  claimed 
a  credit  for  the  sum  paid  to  himself  as  above  stated.  Schofield, 
through  his  attorney,  appeared  upon  the  accounting  and  as 
trustee  objected  to  the  credit  and  claimed  that  sum  should  bo 
paid  to  Iiini.  The  referee  ruled  that  the  law  of  this  State  does  not 
recognize  the  validity  of  foreign  bankruptcy  proceedings  to  trans- 
fer title  to  property  of  the  bankrupt  situated  here,  and  for  thai 
reason  held  that  the  payment  by  Waite,  as  assignee,  to  himself  as 


202  PRIVATE    INTERNATIONAL    LAW. 

a  member  of  the  firm  of  Pendel  &  Waite,  was  valid,  and  that 
he  was  entitled  to  the  credit  claimed.  The  same  view  of  the  law 
was  taken  at  the  Special  and  General  Terms  of  the  Common  Pleas, 
and  then  Schofield  appealed  to  this  court. 

We  have  stated  the  facts  as  found  by  the  referee,  and  as  the 
respondent  did  not  and  could  not  except  to  the  findings,  and  is 
therefore  in  no  condition  to  complain  of  them,  we  must  assume 
that  they  were  based  upon  sufficient  evidence. 

The  transfer  of  the  property  of  Pendle  &  Waite  to  Schofield 
as  trustee  was  in  invitnni,  solely  by  operation  of  the  English 
Bankrupt  Law.  While  the  proceeding  first  instituted  by  the 
bankrupts  to  arrange  a  composition  with  their  creditors  was. 
voluntary,  the  final  proceeding  through  which  the  adjudication 
in  bankruptcy  was  had,  and  the  trustee  appointed  was  adversary 
and  agamst  their  will,  having  no  basis  of  voluntary  consent  to 
rest  on.     {Williits  v.  Waite,  25  N.  Y.  ^yy.) 

If  the  transfer  effected  by  the  bankruptcy  proceedings  is  tO' 
have  the  same  effect  here  as  m  England,  then  the  title  to  the 
money  due  to  the  bankrupts  from  Haynes  &  Sanger  was  vested 
in  the  trustee.  Schofield  was  appointed  receiver  of  the  prop- 
erty of  ihe  bankrupts  in  March,  1882,  and  then  the  title  passed 
out  of  them.  That  title  continued  in  him  as  receiver  until  he- 
was  appointed  trustee.  After  he  was  appointed  receiver  and 
before  or  after  he  was  appointed  trustee  (which  does  not  appear), 
Waite  as  assignee  paid  himself  as  a  member  of  the  firm  of 
Pendle  &  Waite  the  sum  of  money  in  controversy.  He  had 
notice  of  the  bankruptcy  proceedings  and  knew  that  the  title  to 
the  money  due  from  Haynes  &  Sanger  and  from  himself  as 
their  assignee  had  passed  out  of  the  bankrupts  to  Schofield,  and 
hence  he  had  no  right  to  make  payment  to  them.  Schofield  became 
substituted  in  their  place,  and  Waite  was  bound  to  make  pay- 
ment to  him,  and  cannot,  therefore,  have  credit  for  a  payment, 
wrongfull}'  made.  And  Schofield,  standing  in  the  place  of  the 
original  creditors  of  Haynes  &  Sanger,  had  the  right  to  appear 
upon  the  accounting  and  object  to  the  erroneous  payment  made  in 
disregard  of  his  rights.  But  the  alleged  payment  was  merely 
formal,  not  real.  Waite,  the  assignee,  still  has  the  money  and 
IS  accoimtable  for  it  to  the  proper  party.  It  is  not  perceived  how 
it  can  be  claimed  that  Schofield  was  bound  at  any  time  before 
the  accounting  to  make  any  demand  upon  the  assignee.  He  was. 
a  creditor  holding  the  claim  originally  due  to  Pendle  &  Waite,  and 
as  such  he  could  appear  upon  the  accounting,  with  all  the  rights.. 


BANKRUPTCY.  203 

of  any  other  creditor,  to  protect  his  interests,  and  he  could  not 
be  prejudiced  by  a  payment  alleged  to  have  been  made  by  the 
assignee  to  himself.  All  this  is  upon  the  assumption  that  the 
transfer  to  Schofield  as  trustee  is  to  have  the  same  force  and 
effect  here  as  against  the  bankrupts  as  in  England ;  and  whether 
it  must  have,  is  the  important  and  interesting  question  to  be  deter- 
mined upon  this  appeal. 

It  matters  not  that  Waite  was  a  citizen  of  this  country,  dom- 
iciled here.  He  went  to  England  and  invoked  and  submitted  to 
the  jurisdiction  of  the  Bankruptcy  Court  there  and  is  bound  by  its 
adjudication  to  the  same  extent  as  if  he  had  been  domiciled 
there.  The  adjudication  estopped  him  just  as  every  party  is 
estopped  by  the  adjudication  of  a  court  which  has  jurisdiction 
of  his  person  and  of  the  subject-matter. 

We  have  not  a  case  here  where  there  is  a  conflict  between 
the  foreign  trustee  and  domestic  creditors.  So  far  as  appeais,  no 
mjustice  whatever  will  be  done  to  any  of  our  own  citizens,  or  to 
any  one  else,  by  allowing  the  transfer  to  have  full  effect  here. 
Indeed  justice  seems  to  require  that  this  money  should  be  paid 
to  the  foreign  trustee  for  distribution  among  the  foreign  creditor 
of  the  bankrupts. 

The  effect?  to  be  given  in  any  country  to  statutory  /n  invitmn 
transfers  of  property  through  bankruptcy  proceedings  in  a  for- 
eign country  has  been  a  subject  of  much  discussion  among 
publicists  and  judges,  and  unanimity  of  opinion  has  not  and  prob- 
ably never  will  be  reached.  We  shall  not  enter  much  into  the 
discussion  of  the  subject  and  thus  travel  over  ground  so  nnich 
marked  by  the  foot-steps  of  learned  jurists.  Our  main  endeavor 
will  be  to  ascertain  what,  by  the  decisions  of  the  courts  of  this 
State,  has  become  the  law  here. 

In  Bird  v.  Caritat  (2  Johns.  342),  it  was  held  that  a  suit 
could  be  brught  in  this  State  in  the  name  of  a  foreign  bank- 
rupt uv  his  assignees  for  their  benefit  as  such,  the  name  of  the 
bankrupt  being  used,  because  by  the  common-law  rule,  now 
abrogated,  a  cJwsc  in  action  was  not  assignable  so  as  to  entitle 
the  assignee  to  sue  thereon  in  his  own  name.  In  writmg  the 
opinion  Chancellor  Kent,  then  chief  justice,  said :  "The  de- 
murrer to  the  second  plea  raises  the  question  whether  the  assignees 
inider  a  commission  of  bankruptcy  sued  out  in  England  can 
maintain  a  suit  at  law  here  in  their  own  names.  This  is  more  a 
question  concerning  form  than  substance,  for  there  '^an  be  no 
doubt  of  the  right  of  the  assignees  to  collect  the  debts  due  to  tiie 


204  PRIVATE     INTERNATIONAL    LAW. 

bankrupt  either  by  a  suit  directly  in  their  own  names  or  as  trustees 
using-  the  name  of  the  bankrupt.  It  is  a  principle  of  general  prac- 
tice among-  nations  to  admit  and  give  effect  to  the  title  of  foreign 
assignees.  This  is  done  on  the  ground  that  the  conveyance  under 
the  bankrupt  laws  of  the  country  where  the  owner  is  domiciled 
is  equivalent  to  a  voluntary  conveyance  by  the  bankrupt."  In 
Raymond  v.  JoJinson  (  ii  Johns.  488),  it  was  held  that  although 
the  court  will  recognize  and  protect  the  right  of  an  assignee  under 
the  insolvent  law  of  another  State,  yet  an  action  brought  in  this 
State  must  be  in  the  name  of  the  insolvent.  In  Holmes  v.  Remsen 
(4  Johns.  Ch.  460),  Chancellor  Kent  wrote  an  elaborate  opinion 
holding  that  foreign  assignees  in  bankruptcy  took  title  to  all  the 
property  of  the  bankrupt,  wherever  situated,  with  the  same  force 
and  effect  as  if  the  bankrupt  had  made  a  voluntary  assignment 
of  his  property,  and  that  such  a  title  was  good  even  against  sub- 
sequent attaching  creditors  in  a  country  other  than  that  where 
the  bankruptcy  adjudication  was  had  and  the  statutory  transfer 
was  made,  and  he  said :  "It  is  admitted  in  every  case  that  for- 
eign assignees  duly  appointed  under  foreign  ordinances  are 
entitled  as  such  to  sue  for  debts  due  to  the  bankrupt's  estate." 
In  Holmes  v.  Remsen  (20  Johns.  229),  the  suit  was  between  the 
same  parties  and  involved  the  same  questions,  and  the  effect  of 
the  foreign  bankruptcy  proceeding  was  again  elaborately  con- 
sidered by  Platt,  J.,  and  he  gave  expression  to  views  in  reference 
thereto  differing  from  those  of  Chancellor  Kent  which  have 
been  followed  in  most  of  the  subsequent  cases  in  this  State  upon 
the  same  subject.  He  held  that  a  statutory  assignment  of  a 
debtor's'  property  under  the  laws  of  a  foreign  country  is  not 
equivalent  to  a  voluntary  assignment  by  the  debtor,  and  that 
such  an  assignment  will  not  hold  good  here  to  the  prejudice  of 
the  rights  of  domestic  creditors  pursuing  their  remedy  by  attach- 
ment under  our  laws.  But  he  admitted  that  foreign  assignees 
appointed  in  bankruptcy  proceedings  could  by  the  rules  of  inter- 
national courtesy  and  comity  come  here  and  institute  suits  in  our 
courts  to  recover  the  property  of  the  bankrupt  when  the  interest 
of  creditors  pursuing  their  remedy  under  the  local  laws  were 
not  brought  in  question  or  prejudiced.  He  adopted  in  substance 
the  views  of  iMr.  C"aines,  the  learned  lawyer  who,  arguing  for 
the  attaching  creditors  in  both  cases  between  the  same  parties, 
said :  ''We  admit  that  the  bankrupt  assignment  passes  all  the 
property  of  the  bankrupt,  here  and  everywhere,  provided  always 
that  there  are  no  creditors  here  having  claims  on  that  property. 


BANKRUPTCY.  205 

We  admit  ihe  riglit  of  vhe  assignees  of  the  bankrupt  to  collect 
his  property  here  and  take  it  to  England,  if  there  are  no  creditors 
of  the  bankrupt  here  ;  but  not  otherwise.  1  f  there  are  creditors 
attacliing  here  there  is  a  couHictw;  Icgiiin  and  the  foreign  law  must 
yield."  The  other  judges  declined  to  express  any  opinion  upon 
the  questions  mainly  considered  by  Judge  F'i.att,  but  concurred 
with  iiim  upon  a  minor  point  not  involved  here,  and  upon  that 
point  the  case  was  decided.  In  PIcsloro  v.  Abraham  (  i  I'aige, 
236),  the  facts  were  these:  Abraham,  a  British  subject  domi- 
ciled m  England,  in  July,  1828.  left  that  country  for  the  L'nited 
States,  bringing  with  him  certain  personal  property,  and  arrived  in 
New  York  about  the  ist  of  September  when  the  goods  were 
deposited  in  the  public  store  under  the  charge  of  the  defendant 
Thompson  as  collector  of  the  port  Shortly  after  Abraham  left 
England  a  commission  in  bankruptcy  was  taken  out  against  him 
there  by  virtue  cf  which  lie  was  duly  declared  a  bankrupt ;  and 
on  the  8th  day  of  August,  Johnson,  one  of  the  complainants, 
was  appointed  by  the  commissioners  provisional  assignee.  On 
the  24th  day  of  September,  1828,  the  complainants,  the  pro- 
visional assignee  and  the  creditors  of  Abraham,  all  of  whom  were 
British  subjects  and  residents  of  England,  filed  their  bill  and 
obtained  an  injunction  restraining  the  collector  from  delivering 
the  goods  to  /Abraham,  and  restraining  the  latter  from  receivirig 
or  prosecuting  for  the  same.  Abraham  put  in  his  answer  neither 
admitting  nor  denying  the  proceedings  under  the  commission, 
but  alleging  that  he  left  England  in  the  lawful  pursuit  ot  his 
business  with  a  bona  fide  intention  of  returning,  and  denying 
that  he  was  insolvent  or  had  committed  any  act  of  bankiuptcy. 
Chancellor  Walworth  denied  a  motion  to  dissolve  the  injunc- 
tion, and  held  that  the  assignee  could  have  maintained  the  action 
alone  without  joining  the  creditors ;  and  in  his  opinion,  referring 
to  the  decision  of  Chancellor  Kent  in  Holmes  v.  Remsen,  he 
said  that  it  was  "doubtful  whether  that  decision  to  its  full  extent 
can  be  sustained,"  that  "it  was  strongly  questioned  and  ably 
opposed  by  Platt,  J.,"  in  the  subsequent  case  between  the  same 
parties,  and  that  it  stood  opposed  to  the  opinions  of  the  State 
courts  in  various  cases  cited;  but  he  held  that  the  case  before 
hnn  steered  clear  of  all  the  decisions  cited,  because  in  those  cases 
the  contest  was  between  foreign  assignors  and  domestic  creditors, 
claiming  under  the  laws  of  the  country  where  the  property  was 
situated,  and  the  suits  were  brought,  wliile  in  that  case  the  con- 
troversy was  between  the  bankrupt  and  liis  assignee  and  creditors. 


206  PRIVATE    INTERNATIONAL    LAW. 

all  residing*  in  the  coiintiy  under  whose  laws  the  assignment  was 
made,  and  the  property  itself,  at  the  time  of  the  assignment,  was 
constructively  within  the  jurisdiction  of  that  country,  being  on 
the  high  seas  in  the  actual  possession  of  a  British  subject.  That 
case  was  taken  by  appeal  to  the  Court  of  Errors  (3  Wend.  538), 
where  the  order  of  the  chancellor  was  reversed.  It  is  claimed 
by  the  counsel  for  the  respondent  and  was  so  held  by  the  court 
below  in  this  case,  that  the  Court  of  Errors  held  in  that  case 
that  the  statutory  assignment  in  England  was  wholly  inoperative 
here,  and  that  the  foreign  assignee,  therefore,  was  not  vested 
with  the  title  to  the  property  here  even  as  against  the  bankrupt. 
We  are  of  opinion  that  it  was  not  so  held,  and  that  the  point  was 
left  undecided  by  that  case.  Marcy,  J.,  writing  an  opinion  for 
affirmance  in  which  Sutherland,  J.,  concurred,  expressed  views 
sinnlar  to  those 'announced  by  Platt,  J.,  in  Holmes  v.  Remsen, 
and  held  that  the  foreign  assignee  could  sue  in  our  courts,  and 
that  his  title  to  the  property  was  good  as  against  the  bankrupt. 
Senator  Allen,  writing  an  opinion,  held  that  the  order  shoula 
be  reversed  on  the  ground  that  an  injunction  was  not  the  proper 
remeciv,  and  we  cannot  discover  that  he  intimated  any  opinion  as 
to  the  important  question  discussed  by  Marcy,  J.,  and  in  Holmes 
V.  Remsen  by  Chancellor  Kent  and  Platt,  J. ;  and  no  definite 
views  upon  the  same  question  were  expressed  by  Senator  May- 
NARD  in  the  opinion  read  by  him.  He  said :  "The  cases,  there- 
fore, in  which  it  has  been  held  that  an  assignment  did  not  transfer 
the  property  of  a  bankrupt  in  a  foreign  country  appear  to  me  not 
applicable  to  the  case  now  under  consideration.*'  And  further : 
'Tf  the  assignment  in  this  case  did  operate  a  transfer  of  the 
property  in  question,  what  need  is  there  of  the  aid  of  a  Court  of 
Chancery  to  enable  the  assignee  to  obtain  possession  of  it?  If 
by  virtue  of  the  assignment  the  assignee  acquired  a  legal  title  to 
the  property,  the  courts  of  law  are  abundantly  competent  to  afiford 
equitable  relief."  Senator  Oliver,  also  writing  for  reversal,  said: 
'"The  question  is  not  whether  a  foreign  assignee  shall  be  per- 
mitted to  sue  in  our  courts;  in  relation  to  that  there  can  be  but 
one  opinion.  Had  the  proceedings  in  bankruptcy  in  this  case 
been  perfected  the  bankrupt  asquiescing  in  their  justice  and 
propriety,  and  the  assignee  substituted  in  his  place,  and  a  question 
had  arisen  between  him  and  a  debtor  of  the  estate,  no  one  would 
have  doubted  or  questioned  the  right  of  the  assignee  to  sue  in 
our  courts."  But  he  held  that  the  title  of  the  foreign  assignee 
was  not  good  here  as  against  the  bankrupt  himself  unless  he 


BANKRUPTCY.  207 

chose  to  acquiesce  in  it,  and  he  also  reached  the  conclusion  that 
even  if  the  title  of  the  assignee  were  good  here,  an  injunction  was 
not  a  oroper  remedy.  Senator  Sricmuxs  writing-  for  reversal  held 
that  the  statutory  transfer  in  England  could  have  no  operation 
here,  and  that,  therefore,  the  foreign  assignee  did  not  have  title 
to  the  property,  and  that  even  if  he  did  have  title  an  injunction 
was  not  the  proper  renTcdy.  Senator  Tiiroop  wrote  for  affirm- 
ance liolding  that  the  title  of  the  foreign  assignee  was  good  as 
against  the  hankrupt,  and  that  an  injunction  was  a  proper  remedy. 
No  other  opinions  were  written.  Justices  Marcy  and  Suthek- 
LAXD  ar.d  Senators  TiiROOi'  and  Woodward  voted  for  affirmance, 
and  seventeen  senators  for  reversal.  It  does  not  appear,  and  can- 
not he  ascertained  upon  what  ground  the  fourteen  senators  who 
voted  for  reversal,  writing  no  opinions,  hascd  their  votes.  Some 
may  nave  concurred  m  the  result  upon  one  ground  and  some 
upon  anotlier.  The  most  ohvious  ground,  in  which  all  who  voted 
for  reversal  seemed  to  concur,  was  that  an  injunction  was  not  a 
proper  remedy.  That  case  has  been  much  criticized  by  judges  and 
text-writers,  and  the  impossibility  of  determining  what  was  ad- 
judicated by  it  has  frequently  been  recognized.  In  Jolnison  v. 
Hunt  (23  Wend.  87),  one  Hollis  and  Johnson  and  Miller  were 
residents  of  Chenango  county  in  this  State.  Hollis  absconded, 
and  a  warrant  of  attachment  was  issued  against  him  as  an  ab- 
sconding debtor,  .■\fter  notice  of  the  attachment  had  been  pub- 
lished Johnson  and  Miller,  being  creditors  of  Hollis,  having 
separate  demands  against  him,  went  in  pursuit  of  and  overtook 
him  in  Pennsylvania,  where  they  respectively  obtained  process, 
from  a  justice's  court  and  recovered  judgments  against  him,  on 
which  executions  were  issued,  by  virtue  of  which  he  was  arrested 
and  taken  into  custody.  To  obtain  his  liberty  he  paid  Johnson 
the  amount  of  his  judgment  and  turned  out  certain  personal 
property  to  Miller  in  satisfaction  of  his  judgment.  The  propertv 
thus  turned  out  belonged  to  Hollis  in  Chenango  county  when  he 
absconded,  and  it  was  brought  l)ack  into  that  county  where  it 
was  demanded  of  him  by  the  plaintiffs  in  that  action,  who  had 
been  appointed  trustees  of  the  estate  of  Hollis.  The  demand  not 
having  been  complied  with,  the  action  was  commenced  to  recover 
the  value  of  the  property.  Upon  the  trial  of  the  action  the  court 
charged  the  jury  that  if  the  property  was  removed  from  this 
State,  and  the  defendants  knew  that  Hollis  was  an  absconding 
debtor  at  the  time  when  they  received  it  from  him  in  Pennsylvania, 
he  and  they  being  citizens  of  this  State,  and  the  property  being 


208  PRIVATE    INTERNATIONAL    LAW. 

received  after  the  publication  of  the  notice  of  the  issuing  of  the 
attacliment.  they  were  liable  for  it,  whether  it  was  removed  from 
this  State  before  or  after  publication  of  the  notice,  and  that  the 
legal  proceedings  had  in  Pennsylvania  were  no  protection  to  the 
defendants.  The  jury  found  a  verdict  for  the  plaintiff's,  and  the 
defendants  took  the  case  by  writ  of  error  to  the  Supreme  Court, 
wdiere  the  judgment  was  reversed,  Covven,  J.,  writing  the  opinion. 
He  held  that  the  act  under  which  the  attachment  against  Hollis 
was  issued  was  in  the  nature  of  a  bankrupt  law,  and  that  the 
assignm.ent  of  Hollis'  property  to  trustees  was  in  invitum,  and 
therefore  inoperative  outsi<le  of  this  State ;  and  he  claimed  that  it 
was  decided  in  the  case  of  Abraham  v.  Plcstoro  that  an  assign- 
ment in  invitum  under  the  law  of  one  State  or  nation  has  no  opera- 
tion in  another,  even  with  respect  to  its  own  citizens ;  that  the 
bankrupt,  a  subject  of  the  very  country  under  whose  laws  he  was 
jiroceeded  against,  may,  on  crossing  the  territorial  limits  of  such 
country,  dispose  of  the  property  which  he  has  brought  with  him, 
and  may  withhold  it  entirely  from  the  creditors  who  are  proceed- 
ing against  him  in  the  foreign  jurisdiction.  We  think  we  have 
alrcadv  shown,  that,  at  least,  it  cannot  be  known  that  such  was 
the  decision  in  Abraham,  v.  Flestoro.  As  neither  he  nor  eitlier  of 
his  associates  was  a  member  of  the  court  which  rendered  that 
decision,  he  had  no  better  means  of  knowing  what  was  decided 
thereby  than  we  have,  and  we  cannot  concur  in  his  views  in 
reference  thereto.  But  we  are  left  by  his  opinion  at  a  loss  to 
determine  whether  he  meant  to  deny  all  force  and  effect  to  the 
title  of  statutory  trustees  or  assignees  appointed  in  a  foreign 
country,  or  merely  as  against  creditors  pursuing  their  debtor 
for  the  collection  of  their  debts.  From  the  fact  that  he  cited,  as 
authorities,  Kent's  Commentaries  and  Story  on  the  Conflict  of 
Laws,  and  from  certain  expressions  and  qualifications  contained 
in  his  opinion  we  are  inclined  to  think  that  he  did  not  mean  to  lay 
down  an  unqualified  and  universal  rule  that  an  in  invitum  title 
under  bankruptcy  proceedings  in  one  country  can  have  no  force 
and  operation  whatever  in  another  country.  It  was  not  neces- 
sary for  the  decision  of  that  case  to  lay  down  such  a  rule,  as  the 
defendants  there  simply  did  what  was  lawful  in  the  State  of 
Pennsylvania,  under  its  laws,  to  procure  payment  of  their  debts. 
The  point  decided  is  properly  stated  in  the  head-note  as  follows  r 
"The  property  of  an  absconding  debtor  taken  by  him  from  this 
State  and  transferred  by  him  in  another  State  in  satisfaction  of  a 
judgment  there  r^dered  against  him  was  not  subject  to  the  con- 


BANKRUPTCY.  209 

trol  of  the  trustees  of  h\:,  estate  after  tlie  property  was  broup^ht 
back  to  this  State,  ahhough  he  and  the  crc(htor  to  whom  the 
transfer  was  made  were  at  the  time  residents  of  this  State,  and 
the  transfer  was  made  after  the  pubhcation  of  the  notice  that 
an  attachment  had  issued."  The  question  we  are  now  considering-, 
therefore,  still  remained  inulecided,  and  again  came  under  elabor- 
ate discussion  in  fioyf  v.  Thompson  (5  N.  Y.  320),  where  effect 
was  givei;  in  this  State  to  the  title  of  an  assignee  from  statutory 
trustees  appointed  in  another  State,  and  Judges  Ruggles  and 
Pa[gf.  approved  the  rules  of  law  announced  by  Platt,  J.,  in 
Holmes  V.  Rcmscii.  Ruggles,  J.,  said  that  until  the  decision  of 
Abrahafii  v.  PIcsforo,  "it  had  been  uniformly  held  in  this  State, 
that  in  virtue  of  comity,  the  assignees  of  a  foreign  bankrupt  were 
entitled  to  sue  for,  and  recover  debts  due  to  the  bankrupt  within 
this  State,  except  where  the  claim  of  the  assignee  came  in  con- 
flict with  creditors  in  this  State  claiming  under  attachments 
against  the  bankrupt's  property,  "and  that  it  is  a  mistake  to  sup- 
pose that  that  case  established  in  its  strictest  sense,  and  without 
qualification,  the  doctrine  that  a  foreign  assignment  in  bani<- 
ruptcy  is  absolutely  inoperative  and  void  in  this  State,  and  that 
it  was  impossible  to  say  that  that  case  was  decided  on  grounds 
affecting  the  question  we  are  now  considering,  and  he  disspnted 
from  the  deci>ion  in  Johnson  v.  Hunt  so  far  as  it  was  founded 
upon  a  different  view  of  the  case  of  Abraham  v.  Plcstoro.  Judge 
Paige,  while  expressing  some  views  seemingly  in  accordance 
with  those  expressed  by  Judge  Cowen  in  Johnson  v.  Hunt,  yet 
said :  "Where  neither  the  rights  of  domestic  creditors  or  of 
foreign  creditors  proceeding  against  the  property  under  our  laws 
are  involved,  the  foreign  assignees  may  be  permitted  to  sue  in 
our  courts  for  the  benefit  of  all  the  creditors  on  principles  of 
national  comity  without  a  surrender  of  the  principle  that  a  foreign 
statutory  assignment  does  not  operate  a  transfer  of  the  property 
in  this  State.  Allowing  foreign  assignees  to  sue  in  our  courts 
when  neither  the  rights  of  our  own  creditors,  nor  the  rights  of 
foreign  citizens  pursuing  the  remedies  afforded  by  our  laws  will 
be  prejudiced,  may  be  regarded  as  a  mere  manifestation  of  respect 
for  a  foreign  nation  accorded  upon  principles  of  national  courtesy, 
and  not  as  a  concession  that  the  assignment  under  wiiich  the 
assignees  claim  has  under  our  laws  any  force  or  validity  in  this 
State."  But  the  question  as  to  the  effect  in  this  State  of  a  foreign 
statutory  assignment  and  the  rights  of  the  assignee  here  was 
again   left   undecided,   the   judges    who   did   not   write   express- 

14 


210  PRIVATE    INTERNATIONAL    LAW. 

ing  no  opinion  in  reference  thereto.     A  motion  for  a  reargument 
was  made  in  that  case   (19  N.  Y.  207),  and  upon  that  motion, 
CoMSTOCK,  J.,  wrote  an  opinion  in  which  he  said  that  "the  comity 
which  is  due  to  a  sister  State  may  require  that  the  assignee  of  an 
insolvent  person  or  corporation  in  that  State  should  be  allowed 
to  sue  a  debtor  here;  but  neither  justice  nor  comity  demands  that 
the  foreign  law  should  be  recognized  to  the  extent  of  divesting 
the  titles  of  our  own  citizens  fairly  acquired."     In    WilUtfs  v. 
Waite  (25  N.  Y.  577),  it  was  held  that  statutory  receivers  ap- 
pointed in  Ohio  could  not  enforce  their  title  to  the  property  of 
the  insolvent  in  this  State  against  creditors  subsequently  attach- 
ing it  here,  under  our  laws.    In  that  case,  while  Sutherland,  J., 
was  of  opinion  that  from  comity  the  courts  of  this  State  should 
recognize  and  allow  some  effect  to  a  foreign  involuntary  bank- 
rupt proceeding,  yet  he  erroneously  said  that  he  understood  that 
a  title  under  such  proceedings  "would  not  be  recognized  by  the 
courts  of  this  State,  even  when  the  question  arises  entirely  be- 
tween the  bankrupt  and  his  assignees  and  creditors  all  residing 
in  the  cotmtry  under  whose   laws  the  assignment  was   made." 
Allen,  J.,  writing  in  the  same  case,  said :     "A  quasi  effect  may 
be  given  to  the  law   (of  a  foreign  State)  as  a  matter  of  comity, 
and  interstate  or  international  courtesy,  when  the  rights  of  cred- 
itors or  bona  fide  purchasers,  or  the  interests  of  the  State  do  not 
interfere,  by  allowing  the  foreign  statutory  or  legal  transferee  to 
sue  for  it  in  the  courts  of  the  State  in  which  the  property  is;" 
and  that  "the  State  will  do  justice  to  its  own  citizens  so  far  as 
it  can  be  done  by  administering  upon  property  within  its  juris- 
diction, and  will  yield  to  comity  in  giving  effect  to  foreign  statu- 
torv  assignments,  only  so  far  as  may  be  done  without  impairing 
the  remedies  or  lessening  the  securities  which  our  laws  have  pro- 
vided for  oui  citizens."     The  rule,  as  stated  by  Judges  Platt, 
RuGGLE.s,  Allen,  and  other  eminent  jurists,  whose  opinions  we 
have  quoted,  were  also  fully  recognized  in  the  following  cases : 
(Petersen  v.  Chemical  Bk.,  32  N.  Y.  21  ;  Kelly  v.  Crapo,  45  id. 
86;  Osgood  v.  Magnire,  61   id.  524;  Hibernia  Bk.  v.  Lacombc, 
84  id.  367;  Matter  of  Bristol,  16  Abb.  Pr.  184;  Riink  v.  St.  John, 
29  Barb.  585;  Barclay  v.  Quicksilver  Mining  Co.,  6  Lans.  25; 
Hooper  v.   Tuckerman,  3   Sandf.  311;   Olyphant  v.  Atwood,  4 
Bosw.  459;  Hunt  V.  Jacksun,  5  Blatchf.  349.) 

From  all  these  cases  the  following  rules  are  to  be  deemed 
thoroughly  recognized  and  established  in  this  State:  (i)  The 
statutes  of  foreign  States  can  in  no  case  have  any  force  or  effecc 


BANKRUPTCY.  211 

in  this  State  ex  propria  vigorc,  and  hence  the  statutory  title  of 
foreign  assignees  in  bankruptcy  can  have  no  recognition  here 
solely  by  virtue  of  the  foreign  statute.  (2)  But  the  comity  of 
nations  which  Judge  Denio  in  Petersen  v.  Chemical  Bank  (supra) 
said  is  a  part  of  the  common  law,  allows  a  certain  efifect  here  to 
titles  derived  under,  and  powers  created  by  the  laws  of  other 
countries,  and  from  such  comity  the  titles  of  foreign  statutory 
assignees  are  recognized  and  enforced  here,  when  they  can  be, 
without  injustice  to  our  own  citizens,  and  without  prejudice  to 
the  rights  of  creditors  pursuing  their  remedies  here  under  our 
statutes ;  provided  also,  that  such  titles  are  not  in  conflict  with 
the  laws  or  the  public  policy  of  our  State.  (3)  Such  foreign 
assignees  can  appear  and,  subject  to  the  conditions  above  men- 
tioned, maintain  suits  in  our  courts  against  debtors  of  the  bank- 
rup't  whom  they  represent,  and  against  others  who  have  inter- 
fered with,  or  withhold  the  property  of  the  bankrupt. 

If  it  be  admitted,  as  it  must  be  under  the  authorities  cited, 
that  Schofield  can,  as  assignee  of  Pendle  &  Waite,  have  a  stand- 
ing in  our  courts  and  that  his  title  will  be  so  far  recognized  here 
that  he  can  sue  the  debtors  of  that  firm  to'  recover  the  amount 
owning  to  the  firm,  why  may  he  not  sue  the  bankrupts?  If  the 
assignee  could  sue  Haynes  &  Sanger  to  recover  what  they  owed 
the  bankrupts,  why  can  he  not  be  permitted  to  sue  the  bankrupts 
for  money  or  property  placed  in  their  hands  to  pay  the  debt?  If 
he  could  sue  Haynes  &  Sanger,  why  could  he  not  sue  their 
assignee,  although  a  member  of  the  bankrupt  firm,  to  recover  the 
money  placed  in  his  hands  to  pay  their  debt?  No  principle  of 
justice,  no  public  policy  requires  the  courts  of  this  State  to  ignore 
the  title  of  this  assignee  at  the  instance  of  one  of  the  bankrupts. 
No  injustice  will  be  done  to  Waite  if  this  money  be  taken  to  pay 
his  creditors,  and  public  policy  does  not  require  that  the  courts 
of  this  State  should  protect  him  in  his  efforts  either  to  cheat  his 
creditors  or  his  partner.  If  it  be  conceded,  as  it  must  be,  that 
the  title  of  a  foreign  statutory  assignee  is  good  in  this  State  for 
any  purpose  against  anybody,  it  seems  to  us  that  it  ought  to  be 
held  good  against  the  bankrupt  against  whom  an  adjudication 
m  bankruptcy  has  been  pronounced  which  is  binding  upon  him. 

Before  such  an  adjudication  can  be  held  to  be  efficacious  in 
a  foreign  country  to  transfer  title  to  property,  the  bankrupt  court 
must  have  had  jurisdiction  of  the  bankrupt  either  because  made 
in  the  country  of  his  domicile  or  because  he,  although  domiciled 
elsewhere,  submitted  to  the  jurisdiction  or   in   some  other   way 


212  PRIVATE    INTERNATIONAL    LAW. 

came  under  the  jurisdiction  of  the  bankrupt  court.  Here  Pendle 
&  Waite  did  most  of  their  business  in  England.  Most  of  their 
assets  and  of  their  creditors  were  there,  and  while  Pendle  alone 
was  domiciled  there,  Waite  went  there  and  submitted  to  the 
jurisdiction  of  the  Bankrupt  Court  and  exposed  himself  to  the 
operation  of  the  English  law.  He  is  therefore  bound  by  the 
adjudication  of  the  court  as  he  would  have  been  if  domiciled 
there,  and  the  judgment  had  been  in  a  common-law  court  upon 
any  personal  cause  of  action. 

The  decisions  in  the  Federal  courts,  and  in  most  of  the  other 
States,  are  in  harmony  with  the  views  we  have  expressed;  and 
so  are  the  doctrines  of  all  the  great  jurists  who  have  written 
upon  the  subject  of  private  international  law.  (2  Bell's  Comm. 
681,  687;  Wheaton's  Int.  L.  [8th  ed.,  by  Dana],  §§  89,  90,  91, 
144  and  note ;  2  Kent's  Comm.  405 ;  Wharton's  Confl.  of  Laws, 
§§  353.  368,  391.  735,  72,^;  Story's  Confl.  of  Laws,  §§  403,  410, 
412,  414,  420,  421.) 

There  are  but  two  cases  in  this  State  which  really  hold  any 
thing  in  conflict  with  these  views,  and  they  are  Mossclman  v. 
Caen,  (34  Barb.  66;  N.  Y.  Sup.  Ct.  [4  T.  &  C]  171).  In  the 
first  case  the  action  was  by  foreign  trustees,  appointed  in  bank- 
ruptcy proceedings,  to  recover  goods  in  the  possession  of  the 
defendant  in  this  country,  and  the  plaintiffs  recovered.  The 
defendant  appealed,  and  sought  to  reverse  the  judgment,  upon 
the  ground  that  the  plaintiffs  did  not,  as  trustees,  have  any  title 
to  the  propertv.  The  judgment  was  affirmed,  on  the  ground  that 
the  defendant  did  not  raise  the  question  of  title  at  the  trial.  But 
the  judges  writing  were  of  opinion  that  the  plaintiffs  did  not 
have  any  title  to  the  bankrupt's  property  located  here,  and  one 
of  them  (Sutherland,  J.)  stated  that  the  case  of  Abraham  v. 
Plcstoro  (3  Wend.  538),  confirmed  by  Johnson  v.  Hunt,  "would 
seem  to  be  conclusive  upon  the  question,  whether  our  courts  will 
recognize  or  enforce  a  right  or  title  acquired  under  a  foreign 
bankrupt  laAV  or  foreign  bankruptcy  judicial  proceedings.  The 
case  of  Abraham  v.  Plestoro  was  certainly  very  broad  in  its 
repudiation  of  foreign  bankruptcy  proceedings,  and  went  much 
further  than  the  case  of  Holmes  v.  Remsen  (20  Johns.  229)  ;  but 
I  think  it  must  be  deemed  conclusive  authority  for  saying,  that 
had  the  defendant  raised  the  question  by  demurrer,  or  on  the 
trial,  it  must  have  been  held  that  the  plaintiffs  could  not  main- 
tain this  action."  In  the  second  case  Davis,  P.  J.,  writing  the 
opinion  of  the  court,  said :     'Tt  seems  to  be  the  settled  law  of 


BANKRUPTCY.  213 

this  State  that  our  courts  will  not  recognize  or  enforce  a  right 
or  title  acquired  under  a  foreign  bankrupt  law,  or  foreign  bank- 
rupt proceedings,  so  far  as  affects  property  within  their  juris- 
diction, or  demands  against  residents  of  the  State."  These  two 
cases  are  unsupported  by  authority,  and  are,  we  think,  opposed 
to  sound  principles,  and  are  in  conflict  with  the  current  of 
authority  in  this  State. 

We  are,  therefore,  of  opinion  that  Schofield  was  competent 
to  appear  upon  the  accounting  to  protect  the  interests  of  the 
bankrupt  estate  which  he  represented,  and  that,  upon  the  facts 
as  they  appear  in  this  record,  his  objection  to  the  allowance  of 
the  payment  made  by  the  assignee  to  himself  ought  to  have  pre- 
vailed, and  that  he  should  be  recognized  as  a  creditor  for  tho 
amount  of  such  payment. 

It  follows  that  the  orders  of  the  General  and  Special  Terms 
should  be  reversed,  and,  as  the  facts  may  be  varied  or  more  fully 
presented  upon  a  new  hearing,  the  matter  should  be  remitted  to 
the  Special  Term  for  further  proceedings  upon  the  same  or  new 
evidence,  in  accordance  with  the  rules  of  law  herein  laid  down, 
and  that  the  appellant  should  recover  from  the  respondent  costs 
of  the  appeals  to  the  General  Term  and  to  this  court. 

All  concur. 

Ordered  accordingly.^'"* 

"The  English  Court  of  Bankruptcy  has  no  jurisdiction  to  make  an 
adjudication  of  bankruptcy  against  a  foreigner,  domiciled  and  resident 
abroad,  who  has  never  been  in  England,  even  though  he  is  a  member  of  an 
English  firm  which  has  traded  and  contracted  debts  in  England.  Expartc 
Blain  12  Chan.  Div.  522  (1879).  Bankruptcy  is  a  very  serious  matter.  It 
alters  the  status  of  the  bankrupt.  This  cannot  be  overlooked  or  forgotten 
when  we  are  dealing  with  foreigners,  who  are  not  subject  to  our  jurisdic- 
tion.   In  re  A.  B.  &■  Co.,  i  Q.  B.  341:  In  re  Pearson,  2  Q.  B.  263. 

It  is  the  settled  law  of  England  that  an  assignment  under  the  bankrupt 
law  of  a  foreign  country  passes  all  the  personal  property  of  the  bankrupt 
situate,  and  all  debts  owing  in  England,  and  that  the  attachment  of  such 
proj^erty  by  an  English  creditor,  after  bankruptcy,  with  or  without  notice 
to  him.  is  invalid  to  overreach  the  assignment,  .^nd  the  same  doctrine 
holds  there  under  English  assignment  as  to  personal  property  and  debts 
of  the  bankrupt  in  foreign  countries.  The  same  doctrine  obtains  in  France 
and  Holland,  Armani  v.  Castriquc.  13  M.  &  IV.  443:  Story  Conflict  of 
Lazvs,  Sections  409,  417.  But  the  ubiquity  of  the  operation  of  assignments 
under  foreign  bankrupt  laws  has  always  been  denied  in  this  country,  and 
such  assignments  are  not  permitted  to  prevail  against  a  subsequent  attach- 
ment of  the  bankrupt's  effects  found  here.  The  Law  of  Germany  is  the 
same.     Whart.  Conf.  Laws,  Sec.  844:  McDougall  v.  Page.  55  Vt.  187. 

There  is  no  doubt  that  a  debt  or  liability  arising  in  any  country  may 
be  discharged  by  the  laws  of  that  country;  and  that  such  a  discharge,  if  it 
releases  the  debt  or  liability,  and  does  not  ir.c-rely  interfere  with  the  rem- 
edy, or  course  of  procedure  to  enforce  it,  will  be  an  effectual  answer  to 


214  PRIVATE    INTERNATIONAL    LAW. 

the  claim,  not  only  in  the  courts  of  that  country,  but  in  every  other  coun- 
try. This  is  the  law  of  England,  and  is  a  principle  of  private  international 
law  adopted  in  other  countries.  Peck  v.  Hibhard,  26  Vi.  698:  Story  Con- 
flict of  Laics,  Sections  335,  338;  Ellis  v.  McHenry,  L.  R.  6,  C.  P.  228. 

A  discharge  in  insolvency  by  a  court  of  insolvency  having  jurisdiction 
of  the  debtor  and  creditor,  will  bar  a  suit  in  any  other  jurisdiction  to 
recover  a  debt  that  was  provable  in  the  insolvency  court.  Bank  v.  Hall, 
86  Me.  107  (1893). 

As  a  general  proposition,  it  is  also  true  that  a  discharge  under  a 
foreign  bankrupt  law  is  no  bar  to  an  action  in  the  courts  of  another  country 
on  a  contract  made  and  to  be  performed  there.  McMillan  v.  McNeill,  4 
Wheat.  209;  Smith  t'.  Buchanan,  i  East  6.  A  debt  contracted  by  a  resident 
of  Vermont  to  a  resident  of  Canada,  and  payable  in  Canada,  is  not  barred 
by  a  discharge  under  the  United  States  Bankrupt  Act,  where  the  creditor 
was  not  a  party  to  and  had  no  personal  notice  of  the  proceedings.  Mc- 
Daugall  V.  Page,  ^5  Vt.  187,  45  Am.  Rep.  602. 

The  English  courts  hold  that  a  commission  in  bankruptcy  passes  the 
title  to  personal  property  of  the  bankrupt  wherever  it  is  situated.  Batchel- 
ler  V.  National  Bank,  157  Mass.  33.  The  court  of  the  domicil  has  the  right 
to  pronounce  a  universally  valid  judgment  with  regard  to  the  personal 
property  of  the  bankrupt.  In  re  Artola  Hermanos,  24  Queen's  Bench  Div. 
640   (1890). 

Bankrupt  laws  in  the  United  States  do  not  operate  extra-territorially. 
Guillander  v.  Hoivcll,  35  N.  Y.  657:  Bank  v.  Hall,  86  Me.  107.  Involuntary 
transfers  of  property,  such  as  work  by  operation  of  law,  as  foreign  bank- 
rupt and  insolvent  laws,  have  no  legal  operation  out  of  the  state  in  which 
the  law  was  passed.  Barnett  v.  Kinney,  147  U.  S.  476.  A  voluntary  trans- 
fer, if  valid  where  made,  is  valid  everywhere,  being  the  exercise  of  the 
personal  right  of  the  owner  to  dispose  of  his  own.  Cole  v.  Cunningham, 
133  U.  S.  107. 

The  operation  of  voluntary  or  common  law  assignments  upon  property 
situated  in  other  states  will  be  respected,  except  so  far  as  they  come  in 
conflict  with  the  rights  of  local  creditors,  or  with  the  laws  or  public  policy 
of  the  state  in  which  the  assignment  is  sought  to  be  enforced.  But  the 
rule  with  respect  to  statutory  assignments  is  somewhat  different.  The 
prevailing  American  doctrine  is  that  a  conveyance  under  a  state  insolvent 
law  operates  only  upon  property  within  the  territory  of  that  state,  and  that 
witTi  respect  to  property  in  other  states  it  is  given  only  such  effect  as  the 
laws  of  such  state  permit ;  and  that,  in  general,  it  must  give  way  to  claims 
of  creditors  pursuing  their  remedies  there.  It  passes  no  title  to  real  estate 
situated  in  another  state.  Security  Trust  Co.  v.  Dodd.  Mead  &  Co.,  173 
U.  S.  624.  An  insolvent  assignment  will  not  pass  title  to  foreign  real 
estate.  Watson  v.  Holden,  ^8  Kan.  666.  Title  to  real  estate  is  exclusively 
governed  by  the  law  of  the  country  where  the  real  estate  is  situated. 
Osborn  v.  Adams,  18  Pick.  245;  McCormick  v.  Sullivant,  10  Wheat.  202. 
A  bankrupt  assignment  does  not  vest  in  the  assignee  title  to  real  estate 
in  a  foreign  country.  Oakey  v.  Bennett,  11  Hozv.  33;  Harvey  v.  Edens, 
69  Tex.  420. 

The  administration  in  bankruptcy  of  the  property  of  a  bankrupt  which 
has  passed  to  the  trustee  is  governed  by  the  law  of  the  country  where  the 
bankruptcy  proceedings  take  place  {lex  fori).  Dicey  Conflict  of  Lazvs, 
p.  671. 

For  history  and  constitutionality  of  national  bankruptcy  law  in  the 
United  States,  see  Hanover  Nat.  Bank  v.  Moyses,  186  U.  S.  181  (1902). 
Also,  see  Jaquith  v.  Roidey,  188  U.  S.  620:  Earling  v.  Seymour  Lumber 
Co.,  113  Fed,  Rep.  483;  Singer  v.  Nat.  Bedstead  Co.,  11  Am.  B.  R.  276. 


CHAPTER  VIII. 

FOREIGN    EXECUTORS,    ADMINISTRATORS.    TRUS- 
TEES, AND  RECEIVERS. 

WILKINS   V.   ELLETT,    1883. 
[108  U.   S.  256.] 

I.     Extra-territorial  Powers  of  Such     2.     Relation  Between  Principal  and 
Officers.  Ancillary  Administration. 

Mr.  Ju.stice  Gray  delivered  the  opinion  of  the  court. 

This  is  an  action  of  assumpsit  on  the  common  counts,  brouglit 
in  the  Circuit  Court  of  the  United  States  for  the  Western  District 
of  Tennessee.  The  plaintiff  is  a  citizen  of  Virgmia,  and  sues  as 
administrator,  appointed  m  Tennessee,  of  the  estate  of  Thomas 
N.  Quarles.  The  defendant  is  a  citizen  of  Tennessee,  and  sur- 
viving^ partner  of  the  firm  of  F.  H.  Clark  &  Company.  The 
answer  sets  up  that  Quarles  was  a  citizen  of  Alabama  at  the  time 
of  his  death  :  that  the  sum  sued  for  has  been  paid  to  William 
Goodloe,  appointed  his  administrator  in  that  State,  and  has  been 
inventoried  and  accounted  for  by  him  upon  a  final  settlement  of 
his  administration  :  and  that  there  are  no  creditors  of  Quarles  in 
Tennessee.  The  undisputed  facts,  appearing-  by  the  bill  of  excep- 
tions, are  as  follows : 

Quarles  was  born  at  Richmond,  Virginia,  in  1835.  In  1839 
his  mother,  a  widow,  removed  with  him,  her  only  child,  to  Court- 
land,  Alabama.  The}'  lived  there  together  untii  1856,  and  she 
madf^  her  home  there  until  her  death  in  1864.  In  1856  he  went 
to  Memphis,  Tennessee,  and  there  entered  the  employment  of  I*". 
H.  Clark  8:  Company,  and  continued  in  their  employ  as  a  clerk, 
making  no  investments  himself,  but  leaving  his  surplus  earnings 
on  interest  in  their  hands,  until  January,  1866,  when  he  went  to 
the  house  of  a  cousin  in  Courtland.  .Vlaliama,  and  while  there  died 
by  an  accident,  leaving  personal  estate  in  Alabama.  On  the  27111 
of  January.  1866.  Goodloe  took  out  letters  of  administration  in 
Alabama,  and  in  February.  1866,  went  to  Memphis,  and  there, 
upon  exhibiting  his  letters  of  administration,  received  from  the 
defendant  the  sum  of  money  due  to  Quarles.  amounting  to  $3.- 


216  PRIVATL    INTERNATIONAL    LAW. 

455.22  (which  is  the  same  for  which  this  suit  is  brought),  and  in- 
cluded it  in  his  inventory,  and  in  his  final  account,  which  was 
allowed  by  the  probate  court  in  Alabama.  There  were  no  debts 
due  from  Ouarles  in  Tennessee.  All  his  next  of  km  resided  in 
Virginia  or  in  Alabama;  and  no  administration  was  taken  out  on 
his  estate  in  Tennessee  until  June,  1866,  when  letters  of  adminis- 
tration were  there  issued  to  the  plaintifiF. 

There  was  conflicting  evidence  upon  the  question  whether 
the  domicil  of  Ouarles  at  the  time  of  his  death  was  in  Alabama  or 
m  Tennessee.  The  jury  found  that  it  was  in  Tennessee,  under 
mstructions,  the  correctness  of  which  we  are  not  prepared  to 
affirm,  but  need  not  consider,  because  assuming  them  to  be  correct, 
we  are  of  opinion  that  the  court  erred  in  instructing  the  jury  that, 
if  the  domicil  was  in  Tennessee,  they  must  find  for  the  plaintiff ; 
and  in  refusing  to  instruct  them,  as  requested  by  the  defendant, 
that  the  pavment  to  the  Alabama  administrator  before  the  ap- 
pomtment  of  one  in  Tennessee,  and  there  being  no  Tennessee 
creditors,  was  a  valid  discharge  of  the  defendant,  without  refer- 
ence to  the  domicil. 

There  is  no  doubt  that  the  succession  to  the  personal  estate 
of  a  deceased  person  is  governed  by  the  law  of  his  domicil  at  the 
time  of  his  death ;  that  the  proper  place  for  the  principal  admin- 
istrator of  his  estate  is  that  domicil ;  that  administration  may  also 
be  taken  out  in  any  place  in  which  he  leaves  personal  property ; 
and  that  no  suit  for  the  recovery  of  a  debt  due  to  him  at  the  time 
of  his  death  can  be  brought  by  an  administrator  as  such  in  any 
State  in  which  he  has  not  taken  out  administration. 

But  the  reason  for  this  last  rule  is  the  protection  of  the  rights 
of  citizens  of  the  State  in  which  the  suit  is  brought ;  and  the  ob- 
jection does  not  rest  upon  any  defect  of  the  administrator's  title  in 
the  property,  but  upon  his  personal  incapacity  to  sue  as  admin- 
istrator beyond  the  jurisdiction  which  appointed  him. 

If  a  debtor,  residing  in  another  State,  comes  into  the  State^ 
in  which  the  administrator  has  been  appointed,  and  there  pays 
him,  the  payment  is  a  valid  discharge  everywhere.  If  the  debtor, 
bemg  in  that  State,  is  there  sued  by  the  administrator,  and  judg- 
ment recovered  against  him,  the  administrator  may  bring  suit 
in  his  own  name  upon  that  judgment  in  the  State  where  the  debtor 
resides.  Talmage  v.  Chapel,  16  Mass.  71  ;  Biddle  v.  Wilkins,  i 
Pet.  686. 

The  administrator,  by  virtue  of  his  appointment  and  author- 
ity as  such,  obtains  the  title  in  promissory  notes  or  other  written 


FOREIGN    EXECUTORS,    ADMINISTRATORS,    ETC.  217 

evidences  of  debt,  held  by  the  intestate  at  the  time  of  his  death, 
and  coming  to  the  possession  of  the  administrator ;  and  may  sell, 
transfer  and  indorse  the  same ;  and  the  purchasers  or  indorsees 
may  maintain  actions  in  tlieir  own  names  against  the  debtors  in 
another  State,  if  tiie  dc1)ts  are  negotiable  promissory  notes,  or  if 
the  law  of  the  State  in  which  the  action  is  brought  permits  the 
assignee  of  a  chose  in  action  to  sue  in  his  own  name.  Harper  v. 
Butler,  2  Pet.  239;  Shaw,  C.  J.,  in  Rand  v.  Hubbard,  4  Met.  252, 
258-2fxD;  Petersen  v.  Chejiiical  Bank,  32  N.  Y.  21.  And  on  a 
note  made  to  the  intestate,  payable  to  bearer,  an  administrator  ap- 
pointed in  one  State  may  sue  in  his  own  name  in  another  State. 
Barrett  v.  Barrett,  8  Greenl.  353 ;  Robinson  v.  Crandall,  9  Wend. 

425- 

In  accordance  with  these  views,  it  was  held  by  this  court 

when  this  case  was  before  it  after  a  former  trial,  at  which  the 

domicil  of  the  intestate  appeared  to  have  been  in  Alabama,  that 

the  payment  in  Tennessee  to  the  Alabama  administrator  was  good 

as  against  the  administrator  afterwards  appointed  in  Tennessee. 

Wilkins  V.  Ellett,  9  Wall.  740. 

The  fact  that  the  domicil  of  the  intestate  has  now  been  found 
"by  the  jury  to  be  in  Tennessee  does  not  appear  to  us  to  make  any 
difference.  There  are  neither  creditors  nor  next  of  kin  in  Tennes- 
see. The  Alabam^a  administrator  has  inventoried  and  accounted 
for  the  amount  of  this  debt  in  Alabama.  The  distribution  among 
the  next  of  kin,  whether  made  in  Alabama  or  in  Tennessee,  must 
he  according  to  the  law  of  the  domicil ;  and  it  has  not  been  sug- 
gested that  there  is  any  difference  between  the  laws  of  the  two 
States  in  that  regard. 

The  judgment  must  therefore  be  reversed,  and  the  case  re- 
manded with  directions  to  set  aside  the  verdict  and  to  order  a 

Nezi'  trial}^ 


'"The  powers  of  executors,  administrators,  receivers,  and  trustees  in 
foreign  jurisdictions  are  about  the  same.  Comity  recognizes  that  such 
officers  appointed  in  one  jurisdiction  may  protect  interests  and  enforce 
•claims  elsewhere,  when  to  do  so  does  not  interfere  with  the  rights  of  local 
creditors,  pursuing  their  remedies  in  the  local  courts.  Gilman  v.  Kctcham, 
84  Wis.  60.  34  y.  ir.  393:  Chicago  Ry.  Co.  v.  Packet.  loS  111.  317,  48  Am. 
R<^P-  557,'  Whitman  v.  Mast,  11  Wash.  318,  48  Am.  St.  Rep.  874:  Parker  v. 
Mill  Co.,  91  Wis.  174.  64  N.  W.  731:  Comstock  v.  Frcdcrickson,  31  Minn. 
350:  Wilson y.  Keels.  54  S.  C.  343.  32  S.  H.  702. 

The  weight  of  authority  seems  to  be  that  trustees  have  no  extra- 
territorial power  of  official  action.  Booth  v.  Clark.  17  Hoiv.  164;  Hale  v. 
Harris,  112  lozva  372,  83  N.  W.  1046;  Ayres  v.  Seibcl.  82  lozva  347,  47  N. 
W.  989.  In  the  case  of  Fidelity  Ins..  Safe  and  Deposit  Co.  v.  Nelson.  30 
.Wash.  J40,  70  Pac.  Rep.  961,  the  court  held  that  a  foreign  trustee  could 


218  PRIVATE    INTERNATIONAL    LAW. 

maintain  an  action  respecting  the  trust  property  when  no  local  creditor  is 
affected. 

Voluntary  payments  by  debtors  to  a  foreign  executor  or  administrator 
discharge  the  debts.  Vroom  v.  Van  Home,  lo  Paige  (N.  Y.  Chan.)  S49y 
42  Am.  Dec.  94:  Sclilutcr  v.  Bank,  117  N.  Y.  125,  22  N.  E.  572,  5  L.  R.  A. 
541,  15  Am.  St.  Rep.  494,  Dexter  v.  Berge,  76  Minn.  216.  78  N.  IV.  11 11. 

This  is  the  rule  only  where  there  is  no  domestic  administrator,  or 
he  is  appointed  after  the  debt  is  paid,  or  at  least  after  suit  is  brought  by 
the  domiciliary  administrator.  Btill  v.  Fuller,  78  lorva  20,  42  N.  IV.  572^ 
16  Am.  St.  Rep.  419;  National  Bank  v.  Sharp,  53  Md.  521;  Grcenz^<alt  v. 
Bastion,  10  Kan.  App.  loi. 

It  has  been  held  that  where  there  is  a  domestic  administrator  payment 
to  a  foreign  administrator  is  no  discharge.  Equitable  Life  Ass.  v.  Vogel,, 
76  Ala.  441,  52  Am.  Rep.  344:  Walker  v.  IVelker,  55  III.  App.  118:  Amsden 
V.  Danielson,  18  R.  I.  787,  35  Am.  Rep.  70;  Murphy  v.  Crouse,  135  Cal.  14, 
66  Pac.  Rep.  971. 

In  Maas  v.  Savings  Bank.  176  N.  Y.  377,  68  N.  E.  658,  the  court 
decided  that  payment  to  the  foreign  domiciliary  administrator  in  good 
faith,  without  knowledge  that  another  administrator  had  been  appointed 
in  the  state,  and  it  does  not  appear  that  the  decedent  had  any  creditors 
in  the  state,  operated  as  a  discharge  of  the  indebtedness.  See  Stone  v. 
Scripture,  4  Lans.   (N.  Y.)   186. 


JOHNSON  V.  POWERS,  1891. 
[139  U.  S.  156.] 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court. 

This  is  a  bill  in  equity,  filed  in  the  Circuit  Court  of  the  United 
States  for  the  Northern  District  of  New  York,  by  George  K. 
Johnson,  a  citizen  of  Micliigan,  in  behalf  of  himself  and  of  all 
other  persons  interested  in  the  administration  of  the  assets  of 
Nelson  P.  .Stewart,  late  of  Detroit  in  the  county  of  Wayne  and 
State  of  Michigan,  against  several  persons,  citizens  of  New  York, 
alleged  to  hold  real  estate  in  New  York  under  conveyances  made 
by  Stewart  in  fraud  of  his  creditors. 

The  bill  is  founded  upon  the  jurisdiction  in  equity  of  the  Cir- 
cu't  Court  of  the  United  States,  independent  of  statutes  or  prac- 
tice in  any  State,  to  administer,  as  between  citizens  of  different 
States,  any  deceased  person's  assets  within  its  jurisdiction, 
Payne  v.  Hook,  7  Wall.  425 ;  Kennedy  v.  Creswell,  loi  U.  S.  641. 

At  the  threshold  of  the  case,  we  are  met  l)y  the  question 
whether  the  plaintiff  shows  such  an  interest  in  Stewart's  estate  as 
to  be  entitled  to  invoke  the  exercise  of  this  jurisdiction. 

He  seeks  to  maintain  his  bill,  both  as  administrator,  and  as 
a  creditor,  in  behalf  of  himself  and  all  other  creditors  of  Stewart. 

The  only  evidence  that  he  was  either  administrator  or  cred- 
itor is  a  duly  certified  copy  of  a  record  of  the  probate  court  of  the 


FOREIGN    EXECUTORS,    ADMINISTRATORS,    ETC.  219 

county  of  Wayne  and  State  of  Michigan,  showing  his  appoint- 
ment by  that  court  as  administrator  of  Stewart's  estate ;  the  sub- 
sequent appointment  by  tliat  court,  pursuant  to  the  statutes  of 
Michigan,  of  commissioners  to  receive,  examine  and  adjust  all 
claims  of  creditors  against  the  estate ;  and  the  report  of  those  com- 
missioners, allowing  several  claims,  including  one  to  this  plain- 
tili*.  "G2orge  K.  Johnson,  for  judginents  against  claimant  in 
Wayne  Circuit  Court  as  endorser,"  and  naming  him  as  adminis- 
trator as  the  partv  objecting  to  the  allowance  of  all  the  claims. 

I'he  plaintiff  certainly  cannot  maintain  this  bill  as  adminis- 
trator of  Stewart,  even  if  the  bill  can  be  construed  as  framed  in 
that  aspect ;  because  he  admits  that  he  has  never  taken  out  letters 
of  administration  in  New  York ;  and  the  letters  of  administration 
granted  to  him  in  Michigan  confer  no  power  beyond  the  limits  of 
that  State,  and  cannot  authorize  him  to  maintain  any  suit  in  the 
courts,  either  State  or  national,  held  in  any  other  State.  Stacv  v. 
Thrasher,  6  How.  44,  58 ;  Noonan  v.  Bradley,  9  Wall.  394. 

The  question  remains  whether,  as  against  these  defendants, 
the  plaintiff  has  proved  himself  to  be  a  creditor  of  Stewart.  The 
only  evidence  on  this  point,  as  already  observed,  is  the  record  of 
the  proceedings  before  commissioners  appointed  by  the  probate 
court  in  Michigan.  It  becomes  necessary  therefore  to  consider 
the  nature  and  the  effect  of  those  proceedings. 

They  were  had  under  the  provisions  of  the  General  Statutes 
of  Michigan,  (2  Howell's  Statutes.  §§  5888-5906,)   "the  general 
idea"  of  which,  as  stated  by  Judge  Cooley.  ''is  that  all  claims 
against  the  estates  of  deceased  persons  shall  be  duly  proved  be- 
fore commissioners  a])pointed  to  hear  them,  or  before  the  probate 
court  when  no  commissioners  are  appointed.     The  commissioners 
act  judicially  in  the  allowance  of  claims,  and  the  administrator 
cannot  bind  the  estate  by  admitting  their  correctness,  but  must 
leave  them  to  be  proved  in  the  usual  mode."       Clark  v.  Daz'is.  32 
Michigan,  154.   157.     The  commissioners,  when  once  appointed, 
become  a  special  tribunal,  which,  for  most  purposes,  is  indepen- 
dent of  the  probate  court,  and  from  which  either  party  may  appeal 
to  the  circuit  court  of  the  county:  and,  as  against  an  adverse 
claimant,   the   administrator,   general   or   special,    represents   the 
estate,  both  before  the  commissioners  and  upon  the  appeal.     2 
Howell's  Statutes,  §§  5907-5917 ;  LoM;-o/>  v.  Conely,  39  Michigan, 
757.     The  decision  of  the  commissioners,  or  of  the  circuit  court 
on  appeal,  should  properly  be  only  an  allowance  or  disallowance 
cf  the  claim,  and  not  in  the  form  of  a  judgment  at  common  law. 


220  PRIVATE    INTERNATIONAL    LAW. 

La  Roe  v.  Frecland,  8  Michigan,  530.  But,  as  between  the  parties 
to  the  controversy,  and  as  to  the  payment  of  the  claim  out  of  the 
estate  in  the  control  of  the  probate  court,  it  has  the  effect  of  a 
judgment,  and  cannot  be  collaterally  impeached  by  either  of  those 
parties.     Shurhun  ::  Hooper,  40  Michigan,  503. 

Those  statutes  provide  that,  when  the  administrator  declines 
to  appeal  from  a  decision  of  the  commissioners,  any  person  inter- 
ested in  the  estate  may  appeal  from  that  decision  to  the  circuit 
court ;  and  that,  when  a  claim  of  the  administrator  against  the 
estate  is  disallowed  by  the  commissioners  and  he  appeals,  he  shall 
give  notice  of  his  appeal  to  all  concerned  by  personal  service  or  by 
publication.  2  Howell's  Statutes,  §§  5916,  5917.  It  may  well  be 
doubted  whether,  within  the  spirit  and  intent  of  these  provisions, 
the  administrator,  when  he  is  also  the  claimant,  is  not  bound  to 
give  notice  to  other  persons  interested  in  the  estate,  in  order  that 
they  may  have  an  opportunity  to  contest  his  claim  before  the  com- 
missioners ,  and  whether  an  allowance  of  his  claim,  as  in  this  case, 
in  the  absence  of  any  impartial  representative  of  the  estate,  and 
of  other  persons  interested  therein,  can  be  of  any  binding  effect, 
■even  in  Michigan.     See  Lothrop  v.  Concly,  above  cited. 

But  we  need  not  decide  that  point,  because  upon  broader 
grounds  it  is  quite  clear  that  those  proceedings  are  incompetent 
■evidence,  in  this  suit  and  against  these  defendants,  that  the  plain- 
tiff is  a  creditor  of  Stewart  or  of  his  estate. 

A  judgment  in  rem  binds  only  the  property  within  the  con- 
trol of  the  court  which  rendered  it ;  and  a  judgment  in  personam 
binds  only  the  parties  to  that  judgment  and  those  in  privity  with 
them. 

A  judgment  recovered  against  the  administrator  of  a  de- 
ceased person  in  one  State  is  no  evidence  of  debt,  in  a  subsequent 
suit  by  the  same  plamtiff  in  another  State,  either  against  an  ad- 
inmistrator,  whether  the  same  or  a  different  person,  appointed 
there,  or  against  any  other  person  having  assets  of  the  deceased. 
Aspden  v.  Nixon,  4  How.  467;  Stacy  v.  Thrasher,  6  How.  44; 
McLean  v.  Meek,   18  How.   16;  Lozv  v.  Bartiett,  8  Allen,  259 

In  Stacy  v.  Thrasher,  in  which  a  judgment,  recovered  in  one 
State  against  an  administrator  appointed  in  that  State,  upon  an 
alleged  debt  of  the  intestate,  was  held  to  be  incompetent  evidence 
of  the  debt  in  a  suit  brought  by  the  same  plaintiff  in  the  Circuit 
Court  of  the  United  States  held  within  another  State  against  an 
administrator  there  appointed  of  the  same  intestate,  the  reasons 
given  by  Mr.  Justice  Grier  have  so  strong  a  bearing  on  the  case 


FOREIGN    EXECUTORS,    ADMINISTRATORS,    ETC.  221 

before  us,  and  on  the  argument  of  the  appeUant,  as  to  be  worth 
quoting  from: 

"The  administrator  receives  his  authority  from  the  orcHnary, 
or  other  officer  of  the  government  where  the  goods  of  the  intes- 
tate are  situate.  But  coming  into  such  possession  by  succession 
to  the  intestate,  and  encumbered  with  the  duty  to  pay  his  debts,  he 
is  consideied  in  law  as  in  privity  with  him,  and  therefore  t)ound 
or  estopped  by  a  judgment  against  him.  Yet  his  representation 
of  his  intestate  is  a  quahfied  one,  and  extends  not  beyond  the 
assets  of  which  the  ordinary  had  jurisdiction."    6  How.  58. 

In  answering  the  objection  that  to  apply  these  principles  to  a 
judgment  obtained  in  another  State  of  the  Union  would  be  to 
deny  it  the  faith  and  credit,  and  the  effect,  to  which  it  was  en- 
titled by  the  Constitution  and  laws  of  the  United  States,  he  ob- 
served that  it  was  evidence,  and  conclusive  by  way  of  estoppel, 
only  between  the  same  parties,  or  their  privies,  or  on  the  same 
subject  matter  when  the  proceeding  was  in  rem;  and  that  the 
parties  to  the  judgments  m  question  were  not  the  same ;  neither 
were  they  privies,  in  blood,  in  law  or  by  estate ;  and  proceeded  as 
follows : 

"An  administrator  under  grant  of  administration  in  one  State 
stands  in  none  of  these  relations  to  an  administrator  in  another. 
Each  is  privy  to  the  testator,  and  would  be  estopped  by  a  judg- 
ment against  him ;  but  they  have  no  privity  with  each  other,  in 
law  or  in  estate.  They  receive  their  authority  from  different  sov- 
ereignties, and  over  different  property.  The  authority  of  each 
is  paramount  to  the  other.  Each  is  accountable  to  the  ordinary 
from  whom  he  receives  his  authority.  Nor  does  the  one  come  by 
succession  to  the  other  into  the  trust  of  the  same  property,  encum- 
bered by  the  same  debts."     6  How.  59,  60. 

"It  is  for  these  who  assert  this  privity  to  show  wherein  it  lies, 
and  the  argument  for  it  seems  to  be  this:  That  the  judgment 
agains;  the  administrator  is  against  the  estate  of  the  intestate,  and 
that  his  estate,  wheresoever  situate,  is  liable  to  pay  his  debts ; 
therefore  the  plaintiff,  having  once  established  his  claim  against 
the  estate  by  the  judgment  of  a  court,  sTiould  not  be  called  on  to 
make  proof  of  it  again.  This  argument  assumes  that  the  judg- 
ment is  in  rem,  and  not  in  personam,  or  tliat  the  estate  has  a  sort 
of  corporate  entity  and  unity.  But  this  is  not  true,  either  in  fact 
or  in  legal  construction.  The  judgment  is  against  the  person  of 
the  administrator,  that  he  shall  pay  the  debt  of  the  intestate  out 
of  the  funds  committed  to  his  care,     h  there  be  another  admin- 


222  PRIVATE    INTERNATIONAL    LAW. 

istrator  in  another  State  liable  to  pay  the  same  debt,  he  may  be 
subjected  to  a  hke  judgment  upon  the  same  demand,  but  the 
assets  in  his  hands  cannot  be  affected  by  a  judgment  to  which  he 
is  personally  a  stranger."  "The  laws  and  courts  of  a  State  can 
only  affect  persons  and  things  within  their  jurisdiction.  Conse- 
quently, both  as  to  the  administrator  and  the  property  confided 
to  him,  a  judgment  in  another  State  is  res  inter  alios  acta.  It 
cannot  be  even  prima  facie  evidence  of  a  debt ;  for  if  it  have  any 
effect  at  all,  it  must  be  as  a  judgment,  and  operate  by  way  of 
estoppel."    6  How.  60,  6i. 

In  Lo:v  v.  Bartlett,  above  cited,  following  the  decisions  of 
this  court,  it  was  held  that  a  judgment  allowing  a  claim  against 
the  estate  of  a  deceased  person  in  Vermont,  under  statutes  simi- 
lai  to  those  of  Michigan,  was  not  competent  evidence  of  debt  in 
a  suit  in  equity  brought  in  Massachusetts  by  the  same  plaintiff 
against  an  executor  appointed  there,  and  against  legatees  who  had 
received  money  from  him;  the  court  saying:  "The  judgment  in 
Vermont  was  in  no  sense  a  judgment  against  them,  nor  against 
the  property  which  they  had  received  from  the  executor."  8 
Allen,  266. 

In  the  case  at  bar,  the  allowance  of  Johnson's  claim  by  the 
commissioners  appointed  by  the  probate  court  in  Michigan,  giv- 
ing it  the  utmost  possible  effect,  faith  and  credit,  yet,  if  consid- 
ered as  a  judgment  in  rem,  bound  only  the  assets  within  the  juris- 
diction of  that  court,  and,  considered  as  a  judgment  inter  partes, 
bound  only  the  parties  to  it  and  their  privies.  It  was  not  a  judg- 
ment against  Stewart  in  his  lifetime,  nor  against  his  estate  wher- 
ever it  nnght  be ;  but  only  against  his  assets  and  his  administrator 
in  Michigan.  The  only  parties  to  the  decision  of  the  commis- 
sioners were  Johnson,  in  his  personal  capactiy,  as  claimant,  and 
Johnson,  in  his  representative  capacity,  as  administrator  of  those 
assets,  as  defendant.  The  present  defendants  were  not  parties  to 
tiiat  judgment,  nor  in  privity  with  Johnson  in  either  capacity.  If 
any  other  claimant  in  those  proceedings  had  been  the  plaintiff 
here,  the  allowance  of  his  claim  in  Michigan  would  have  been  no 
evidence  of  any  debt  due  to  him  from  the  deceased,  in  this  suit 
brought  in  New  York  to  recover  alleged  property  of  the  deceased 
in  New  York  from  third  persons,  none  of  whom  were  parties  to 
those  proceedings,  or  in  privity  with  either  party  to  them.  The 
fact  that  this  plaintiff'  was  himself  the  only  party  on  both  sides  of 
those  proceedings  cannot,  to  say  the  least,  give  the  decision 
therein  any  greater  effect  against  these  defendants. 


FOREIGN    EXECUTORS,    ADMINISTRATORS,    ETC.  223 

The  ohjection  is  not  that  the  plaintiff  cannot  maintain  this 
bill  without  first  recovcriii.2:  judgment  on  his  debt  in  New  York, 
but  that  there  is  no  evidence  whatever  of  his  debt  except  the  judg- 
ment in  Michigan,  and  that  that  judgment,  being  res  inter  alios 
acta,  is  not  competent  evidence  against  these  defendants. 

This  objection  being  fatal  to  the  maintenance  of  this  bill, 
there  is  no  occasion  to  consider  the  other  questions,  of  law  or  of 
fact,  mentioned  in  the  opinion  of  the  Circuit  Court  and  discussed 
at  the  bar.^' 

Decree  affirmed. 


"The  rule  that  a  foreign  executor  cannot  sue  or  be  sued  in  this  state 
applies  only  to  claims  and  liabilities  resting  wholly  upon  the  representative 
character,  i.  e.,  suits  brought  upon  debts  due  to  or  by  the  testator  in  his 
lifetime  or  based  upon  some  transaction  with  him;  it  does  not  prevent  such 
executor  from  suing  or  being  sued  upon  a  contract  made  with  him  as 
executor.     Johnson  v.  IVallis.  112  N.  Y.  230  (1889). 

A  foreign  executor  or  administrator  cannot  be  sued  as  such.  Heden- 
hcr^  V.  Hcdcnberg.  46  Conn.  30;  Jackson  v.  Johnson.  34  Ga.  511 :  Strauss 
V.  Pliillips,  189  JU.  I.  w  N-  E.  560:  Diiric  v.  Blaiivclt.  49  N.  J.  L.  114: 
Faircliild  v.  Hagcl.  54  ^Ark.  61:  Elting  v.  First  Natl.  Bnk,  173  III.  3^8,  30 
N.  E.  1095. 

In  some  states,  under  some  circumstances,  they  may  be  sued,  for 
instance  if  he  comes  to  reside  within  the  foreign  state  he  may  be  sued 
there.  Colbert  v.  Daniel,  32  Ala.  314.  Or  if  he  is  in  a  foreign  state  with 
assets.    Laughlin  v.  Solomon,  180  Pa.  181,  36  Atl.  704. 

If  an  administrator  sues  and  gets  judgment  against  a  party,  he  may 
sue  on  this  judgment  in  another  state.  Green  v.  Heritage,  63  N.  J.  L.  455, 
43  Atl.  698. 

A  successor  or  representative  of  the  deceased  who  succeeds  to  the  rights 
and  liabilities  of  the  deceased  may  sue  and  be  sued  in  a  foreign  jurisdic- 
tion.    King  V.  Martin.  67  Ala.  177;  Perkins  v.  Stone,  18  Conn.  270. 

Property  once  coming  under  the  control  of  the  executor  or  admin- 
istrator remains  under  such  control.  Clark  v.  Holt.  16  Ark.  257;  Petersen 
V.  Chemical  Bank.  32  N.   Y.  21. 

The  transfer  of  real  estate  is  governed  by  the  law  of  the  place  where 
the  real  estate  is  situated,  and  usually  the  foreign  executor  or  administra- 
tor cannot  transfer,  but  if  he  is  given  power  in  the  will,  he  may  validly 
convey.  Thurber  v.  Carpenter,  18  R.  I.  782;  Green  v.  Alden,  92  Me.  177, 
42  Atl.  359:  Babcock  v.  Collins,  60  Minn.  73,  61  N.  W.  1020.  If  made 
trustee  he  may  sell  foreign  lands.  Hoysradt  v.  Tionesta  Gas  Co.,  194  Pa. 
231,  43  Atl.  62. 

In  Reynolds  v.  McMullen.  33  Mich.  368,  the  court  held  that  where  a 
mortgage  upon  real  property  in  Michigan  belongs  to  a  person  who 
dies  in  another  state  and  whose  estate  is  in  course  of  regular  and  valid 
administration  under  a  local  administrator  in  Michigan,  no  foreign  admin- 
istrator can  sell  the  mortgage  claim  to  strangers;  the  title  thereto  is  in 
the  local  administrator  for  purposes  of  administration,  and  only  he  can 
sue  on  it  or  assign  or  discharge  it  of  record. 

A  power  given  to  an  executor  may  not  be  exercised  by  an  adminis- 
trator who  succeeds  the  executor.     Conklin  z:  Egerton,  21  Wend.  (N.  Y.) 

430. 

.Administration  may  be  granted  upon  chattels  brought  into  the  state, 
whether  rightfully  or  wrongfully,  after  the  death  of  the  owner.     Stcvins 


224  PRIVATE    INTERNATIONAL    LAW. 

V.  Wright,  51  N.  H.  600;  In  re  Hughes,  93  N.  Y.  53;  Mere  field  v.  Harris, 
126  N.  C.  626,  s6  S.  E.  125.  Property  taken  into  another  state  by  the  dom- 
iciliary administrator  or  agent,  for  temporary  purpose,  the  state  into  which 
it  is  taken  can  exercise  no  control  over  it.  Crescent  Ins.  Co.  v.  Stafford, 
3  Woods  94;  Wells  V.  Miller,  45  III.  382:  Christy  v.  Vest,  36  Iowa  285; 
Martin  v.  Sage,  147  Mass.  204,  17  N.  E.  310.  If  a  foreign  administrator  is 
refused  payment,  the  claim  may  be  turned  over  to  the  domestic  adminis- 
trator, who  may  sue  and  recover  the  claim.  MeCully  v.  Cooper,  114  Cat. 
238.  46  Pac.  82. 

Where  administrations  are  granted  to  different  persons  in  different 
states,  they  are  so  far  regarded  as  independent  of  each  other,  that  a  judg- 
ment obtained  against  one  will  furnish  no  right  of  action  against  the 
other,  to  affect  assets  receievd  by  the  latter  in  virtue  of  his  own  adminis- 
tration ;  for  in  contemplation  of  law,  there  is  no  privity  between  him  and 
the  other  administrator.    Judy  v.  Kelley,  11  III.  211. 

CHICAGO,  M.  &  ST.  P.  RY.  v.  KEOKUK,  1883. 

[108  111.  317.] 

This  was  an  attachment  suit  brought  by  the  Chicago,  Mil- 
waukee and  St.  Paul  Railway  Company,  against  the  Keokuk 
Northern  Line  Packet  Company,  in  the  circuit  court  of  Adams 
county,  in  this  State.  The  writ  of  attachment  was,  on  the  21st 
day  of  April,  1881,  levied  upon  the  barge  "G.  W.  Duncan," 
lying  at  Quincy,  in  said  countv,  as  the  property  of  the  defend- 
ant. Samuel  C.  Clubb,  under  the  provision  of  section  29  of  our 
Attachment  act,  "that  any  person  other  than  the  defendant  claim- 
ing the  property  attached  may  interplead,"  etc.,  interpleaded  in 
the  case,  claiming  the  property  so  attached,  under  an  appoint- 
ment as  receiver  of  the  property  and  effects  of  said  packet  com- 
pany, by  the  circuit  court  of  St.  Louis,  in  the  State  of  Missouri, 
in  a  certain  cause  in  said  court  wherein  said  packet  company  was 
defendant.  There  was  judgment  in  favor  of  the  interpleader, 
Clubb,  which,  on  appeal,  was  affirmed  by  the  Appellate  Court 
for  the  Third  District,  and  the  railway  company  appealed  to  this 
court. 

The  plaintiff  in  the  attachment  suit  had  first  filed  a  repli- 
cation to  the  pleas  of  the  interpleader,  traversing  the  same,  but 
afterward,  on  its  motion  granted  by  the  court,  it  withdrew  the 
replication,  as  having  been  filed  by  mistake,  and  then  moved  the 
court  to  file  its  plea  in  abatement,  which  had  been  intended  to  be 
filed  instead  of  the  replication,  denying  the  right  to  interplead  as 
receiver  under  the  appointment  of  a  foreign  court,  which  motion 
the  court  overruled,  whereupon  said  plaintiff  company  filed  the 
plea  in  abatement,  which  plea  the  court,  on  motion  of  said  Clubb, 
ordered  to  be   stricken   from  the  files.     The   plaintiff  company 


FOREIGN    EXECUTORS,    ADMINISTRATORS,    ETC.  225 

then  refiled  its  said  replication,  upon  wliicii  issue  was  joined  and 
the  trial  had.  The  interpleader's  first  plea  alleges  the  harge  was 
his  own  property  at  the  time  of  the  attachment  of  it;  the  second, 
that  it  was  his  property  as  receiver;  the  third,  that  at  such  time 
it  was  in  his  possession  as  receiver. 

The  facts  of  the  case  shown  by  the  evidence  are,  that  at 
the  October  term,  1880,  of  the  circuit  court  of  the  city  of  St. 
Louis,  in  the  State  of  Missouri,  Samuel  C.  Clubb  was  duly 
appointed  receiver  of  the  Keokuk  Northern  Line  Packet  Com- 
pany, an  insolvent  corporation  of  that  State,  with  power  and 
authority  to  take  possession  of  all  the  business  and  property  of 
the  corporation,  and  to  manage  the  affairs  thereof,  under  the 
orders  of  the  court,  the  receiver  giving  bond  in  the  sum  of 
$200,000  for  the  faithful  discharge  of  his  duties.  At  the  time  of 
such  appomtment  the  barge  "G.  W.  Duncan,"  in  question,  was 
lying  at  the  landing  at  St.  Louis,  within  the  State  of  Missouri, 
and  within  the  jurisdiction  of  said  court.  The  receiver  imme- 
diately took  possession  of  the  barge,  and  afterward,  on  the  6th 
day  of  November,  1880,  he  chartered  the  barge  to  the  steamer, 
"E.  W.  Cole,"  for  a  trip  up  the  Mississippi  river  and  return.  The 
barge  was  taken,  under  the  charter,  up  the  river  as  far  as  Quincy, 
Illinois,  where  it  was  detained  by  the  ice,  and  remained  until 
the  levy  of  the  writ  of  attachment  in  this  case  upon  it  on  the  2Tst 
day  of  April,  i88t.  At  the  request  of  the  captain  of  the  steamer 
"E.  W.  Cole,"  the  receiver  released  him  from  the  charter,  and 
took  possession  of  the  barge  at  Quincv,  and  ever  since,  until  tlie 
levy  of  the  attachment,  retained  such  possession,  having  a  watcli- 
man  over  and  guarding  the  barge  against  danger.  The  receiver 
made  an  effort  to  have  the  barge  removed  to  St.  Louis  as  soon 
as  the  river  was  clear  of  ice,  having  made  a  contract  with  a 
steamboat  line  for  the  purpose,  but  did  not  succeed  in  having  the 
removal  matle  before  the  attachment.  The  court  which 
appointed  the  receiver,  at  its  April  term,  1881,  made  an  order 
aL.thorizing  the  receiver  to  intervene  in  the  attachment  suit,  and 
take  the  necessary  steps  to  secure  possession  of  the  barge. 

Mr  Chief  Justice  Sheldon  delivered  the  opinion  of  the 
Court : 

Wc  will  consider  the  case  as  properly  presenting  by  the 
pleadings  the  question  of  the  right  to  interplead  in  the  suit  in  the 
capacity  of  receiver. 

The  general  doctrine  that  the  powers  of  a  receiver  are  coex- 
tensive  only   with    the    jurisdiction    o^   the    court     making    the 

15 


226  PRIVATE    INTERNATIONAL    LAW. 

appointment,  and  particularly  that  a  foreign  receiver  should  not 
be  permitted,  as  against  the  claims  of  creditors  resilient  in  another 
State,  to  remove  from  such  State  the  assets  of  the  debtor,  it  being 
the  policy  of  every  government  to  retain  in  its  own  hands  the 
property  of  a  debtor  until  all  domestic  claims  agamst  it  have  been 
satisfied,  we  fully  concede;  and  were  this  the  case  of  property 
situate  in  this  State,  never  having  been  within  the  jurisdiction 
of  the  court  that  appointed  the  receiver,  and  never  having  been  in 
the  possession  of  the  receiver,  it  would  be  covered  by  the  above 
principles,   which   would   be    decisive   against   the   claim   of   the 
appellee.     But  the   facts  that  the   property  at  the  time  of  the 
appointment  of  the  receiver  was  within  the  jurisdiction  of  the 
court  making  the  appointment,  and  was  there  taken  into  the  actual 
possession  of  the  receiver,  and  continued  in  his  possession  until 
it  was  attached,  take  the  case,  as  we  conceive,  out  of  the  range 
of  the  foregoing  principles.     We  are  of  the  opinion  that  by  the 
receiver's  taking  possession  of  the  barge  in  question  within  the 
jurisdiction  of  the  court  that  appointed  him,  he  became  vested 
with  a  special  property  in  the  barge,  like  that  which  a  sheriff 
acquires  by  the  seizure  of  goods  in  execution,  and  that  he  was 
entitled  to  protect  this   special   property  while  it  continued,   by 
action,  in   like  manner  as   if  he   had  been   the   absolute  owner. 
Having  taken  the  property  in  his  possession,  he  was  responsible 
for  it  to  the  court  that  appointed  him,  and  had  given  a  bond  in  a 
large  sum  to  cover  his   responsibility   as  receiver,  and   to  meet 
such  liability  he  might  maintain  any  appropriate  proceeding  to 
regain  possession  of  the  barge  which  had  been  taken  from  him. 
(Boyle  V.  Toivncs,  9  Leigh,  158;  Singerly  v.  Fox,  75  Pa.  114.) 
It  is  well  settled  that  a  sheriff  does,  by  the  seizure  of  goods  in 
execution,  acquire  a  special  property  in  them,  and  that  he  may 
maintain  trespass,  trover  or  replevin  for  them. 

It  is  claimed  that  there  was  here  an  abandonment  of  the  barge 
by  leasing  it  and  suft'cring  it  to  be  taken  out  of  the  State, — that 
the  purpose  in  so  doing  was  an  unlawful  one,  and  a  gross  viola- 
tion of  official  duty.  We  do  not  so  view  it.  The  receiver  was, 
by  his  appointment,  autliorizerl  to  manage  the  affairs  of  the  cor- 
poration under  the  orders  of  the  court.  The  business  of  the  cor- 
poration was  running  boats  on  the  Mississippi  river,  and  char- 
tering the  barge  for  a  trip  up  that  river  was  but  continuing  the 
employ  of  the  barge  in  the  business  of  the  corporation,  and 
therefrom  making  an  increase  of  the  assets  to  be  distributed 
among  the  creditors.     Browncll    v.   Manchester,    i     Pick,   233, 


FOREIGN    EXECUTORS,    ADMINISTRATORS,    ETC.  227 

decides  that  a  sheriff  in  tlie  State  of  Massachusetts,  who  had 
attached  property  in  that  State,  did  not  lose  his  special  property 
by  removing  the  attaclied  property  into  the  State  of  Rhode 
Island  for  a  lawful  purpose.  Dick  v.  Bailey  ct  al.  2  La.  Ann. 
974,  holds  otherwise  in  respect  to  property  attached  in  Missis- 
sippi, and  sent  l)y  the  sheriff  into  Louisiana  for  an  illegal  pur- 
pose. It  is  laid  down  in  Drake  on  Attachment,  (5th  ed.)  sec. 
292,  that  the  mere  fact  of  removal  by  an  officer  of  attached  prop- 
erty beyond  his  bailiwick  into  a  foreign  jurisdiction,  without 
regard  to  the  cir:umstances  attending  it,  will  not  dissolve  the 
attachment:  that  if  the  purpose  was  lawful,  and  the  possession 
continued,  the  attachment  would  not  be  dissolved;  but  if  the 
purpose  was  imlawful,  though  the  officer's  possession  remained, 
or  if  lawful  and  he  lost  his  possession,  his  special  piopertv  in 
the  goods  would  be  divested, — citing  the  two  cases  al)ove  named. 
We  do  not  consider  that  there  was  any  unlawful  purpose  here  in 
the  chartering  and  cmidoying  of  the  barge,  as  was  done. 

It  is  insisted  the  possession  of  the  barge  w^as  lost.  Tliere 
was  certahdy  evidence  ten  .ling  to  show  possession  by  the  receiver 
up  to  the  time  of  the  attarhment,  and  in  support  of  the  judgment 
of  the  Appellate  Court  we  must  presume  that  it  found  tlie  exist- 
ence of  all  the  facts  necessary  to  sustain  the  judgment,  where 
there  was  evidence  tending  to  show  their  existence,  and  that 
court's  finding  of  fact  is  conclusive  upon  us.  By  taking  the 
barge  into  his  possession  within  the  jurisdiction  of  the  court  that 
appointed  him,  a  special  property  in  the  barge  became  vested  in 
the  receiver,  and  it  is  the  established  rule  tliat  wdiere  a  legal  title 
to  personal  property  has  once  passed  and  become  vestcfl  in 
accordance  with  the  law  of  the  State  where  it  is  situated,  the 
validity  of  such  title  will  be  recognized  everywhere.  Camn'cll 
V.  Seii'dl,  5  Hurl.  &  N.  728;  Clark  v.  Connecticut  Peat  Co.  35 
Conn.  303:  Taylor  v.  Boardnian,  25  Vt.  581  ;  Craf^o  v.  Kcllx,  16 
Wall.  6to:  Waters  v.  Barton,  i  Cold.  (Tenn.)  450. 

Under  this  rule  we  hold  that  where  a  receiver  has  once 
obtained  rightful  possession  of  personal  property  situated  within 
the  jurisdiction  of  his  appointment,  which  he  was  appointed  to 
take  charge  of,  he  w  ill  not  be  deprived  of  its  possession,  though  he 
take  it,  in  the  performance  of  his  duty,  into  a  foreign  jurisdic- 
tion ;  that  while  there  it  can  not  be  taken  from  his  possession  by 
creditors  of  the  insolvent  debtor  who  reside  within  that  juris- 
diction. Where  a  receiver  of  an  insolvent  manufacturing  cor- 
poration, appointed  by  a  court  in  New  Jersey,  took  possession  of 


228  PRIVATE    INTERNATIONAL    LAW. 

its  assets,  and  for  the  pi'rpose  of  completing  a  bridge  which  it 
had  contracted  to  build  in  Connecticut,  purchased  iron  with  the 
funds  of  tlie  estate  and  sent  it  to  that  State,  it  was  decided  that 
the  iron  was  not  open  to  attachment  in  Connecticut  by  a  creditor 
residing  there.  (Pond  v.  Cooke,  45  Conn.  126.)  And  where  C. 
was  appointed,  by  a  court  in  Arkansas,  receiver  of  property  of 
T.,  a  defendant  in  a  suit,  and  ordered  to  ship  it  to  Memphis  for 
sale,  and  to  hold  the  ])roceeds  subject  to  the  order  of  the  court, 
and  did  so  ship  it  to  Memphis,  where  it  was  attached  by  creditors 
of  T.,  it  was  held  that  C.  could  maintain  an  action  of  replevin  for 
the  property  in  Tennessee.  (Cagill  v.  IVooldridgc,  8  Baxter, 
580.)  Kilmer  v.  H chart,  ^^B^  How'.  Pr.  452,  decides  that  receivers 
appointed  in  another  State,  /and  operating  a  railway  as  such,  but 
havmg  property  in  their  hands  as  receivers  in  New  York,  can  not 
there  be  sued, — that  an  attachment  issued  in  such  suit  will  be 
vacated. 

This  is  not  the  case  of  the  officer  of  a  foreign  court  seeking, 
as  against  the  claims  of  creditors  resident  here,  to  remove  from 
this  State  assets  of  the  debtor  situate  here  at  the  time  of  the 
officer's  appointment,  and  ever  since,  and  of  which  he  had  had  no 
previous  possession.  It  is  to  such  a  case  as  that,  as  we  under- 
stand, that  the  authorities  cited  by  appellant's  counsel  appl} ,  and 
not  to  a  case  like  the  present,  wdiere  the  property  was,  at  the  time 
of  the  appointment  of  the  foreign  receiver,  within  the  jurisdiction 
of  the  appointing  court,  and  there  taken  into  the  receiver's  pos- 
session, and  subsequently  suffered  by  him  to  be  brought  into  this 
State  m  the  performance  of  his  duty,  and  his  possession  here 
wrongfullv  invaded,  and  he  seeking  but  redress  for  such  invasion. 

The  judgment  of  the  Appellate  Court  must  be  affirmed. 

Judgment  afHrmed}^ 

"Receivers,  as  a  general  rule,  have  no  extra-territorial  powers'.  Booth 
"  Clark,  17  How.  164;  Fitzgerald  v.  Fitzgerald,  41  Ncbr.  S74,'  JVy man  v. 
Eaton,  107  lou-a  214,  43  L.  R.  A.  69^;  Catlin  v.  Wilcox,  etc.,  123  Ind.  J 17. 

A  receiver  is  distinguishable  from  the  executor  or  administrator  in 
that  the  receiver  is  a  successor.     Rclfe  v.  Rundle,  103  U.  S.  225. 

A  federal  court  will  not  appoint  a  receiver  and  take  property  out  of 
the  possession  of  a  receiver  appointed  by  a  state  court.  Shields  i'.  Cole- 
man, 1^7  U.  S.  168.  An  ancillary  receiver  may  be  appointed  to  take  charge 
of  assets  within  the  state,  and  his  power  is  limited  to  that  jurisdiction. 
Holbrook  V.  Ford,  133  III.  633,  39  N.  E.  109 1 ;  Reynolds  v.  Stockton,  140 

U.S.  254. 

If  no  domestic  creditors,  the  court  will  not  appoint  an  ancillary 
receiver.  Mabon  v.  Ougley,  156  N.  Y.  196,  30  N.  E.  805.  Assets  collected 
within  the  state  may  be  applied  to  domestic  creditors  by  the  ancillary 
receiver,  or  the  court  may  order  the  assets:  transmitted  to  the  principal 


FOREIGN    EXECUTORS,    ADMINISTRATORS,    ETC.  229 

receiver  to  be  distributed  aloni?  with  the  principal  estate.  Fawcett  v  Order 
of  Iron  Hal  64  Conn.  170,  29  At  I.  614;  Pailcy  v.  Fee,  83  Md.  83,  34  Atl 
839:  Bxiswell  V.  Iron  Hall,  161  Mass.  224,  36  N.  E.  1065;  Baldwin  v  Hos- 
mcr,  loi  Mich.  119,  59  N.  W.  432;  People  v.  Granite  Association,  161  N 
V  492  (1900):  Robertson  v.  Stead,  135  Mo.  135,  36  S.  IV.  610;  Osgood  v. 
Maguire.  61  N.  Y.  ^24. 

A  receiver  may  sue  upon  his  individual  right,  in  any  jurisdiction  for 
property  bought  by  him,  or  contract  made  by  him,  or  in  all  cases  where 
the  right  accrues  to  the  receiver.  Cooke  v.  Orange,  48  Conn  401-  Mer- 
chants Nat.  Bank  v  Pa.  Steel  Co.,  57  N.  J.  L.  336,  30  Atl.  545;  Wilkinson 
-v.  Culver,  25  Fed,  639. 


CHAPTER  IX.  N^^ 

FOREIGN  JUDGMENTS. 
HILTON  V.  GUYOT,  1895. 

[159  U.  S.  113.] 

I.     Extra-territorial  Recognition  of       2.     Conclusiveness  of  Foreign  Judg- 
Judgments.  ments. 

The  first  of  these  two  cases  was  an  action  at  law,  brought 
December  18,  1885,  in  the  Circuit  Court  of  the  United  States  for 
the  Southern  District  of  New  York,  by  Gustave  Bertin  Guyot, 
as  official  liquidator  of  the  firm  of  Charles  Fortin  &  Co.,  and  by 
the  surviving  members  of  that  firm,  all  aliens  and  citizens  of  the 
Republic  of  France,  aganist  Henry  Hilton  and  William  Libbey, 
citizens  of  the  United  States  and  the  State  of  New  York,  and 
trading  as  copartners,  m  the  cities  of  New  York  and  Paris  and 
elsewhere,  under  the  firm  name  of  A.  T.  Stewart  &  Co.  The  action 
was  upon  a  judgment  recovered  in  a  French  court  at  Paris  in  the 
Republic  of  France  by  the  firm  of  Charles  Fortin  &  Co.,  all  whose 
members  were  French  citizens,  against  Hilton  and  Libbey,  trading 
as  copartners  as  aforesaid,  and  citizens  of  the  United  States  and 
of  the  State  of  New  York. 

The  complaint  alleged  that  the  judgment  of  the  French  court 
remams  iri  full  force  and  effect ;  that  the  French  court  had  juris- 
diction of  the  subject  matter,  and  of  the  parties;  that  the  plain- 
tiffs have  been  unable  to  collect  the  said  judgment  or  any  part 
thereof,  by  reason  of  the  absence  of  the  said  defendants,  they  hav- 
ing given  up  their  busmess  in  Paris  prior  to  the  recovery  of  the 
said  judgn)ent  on  appeal,  and  having  left  no  property  within  the 
jurisdiction  of  the  Republic  of  France,  out  of  which  the  said  judg- 
ment might  be  made;  and  that  there  is  still  justly  due  and  owing 
from  the  defendants  to  the  plaintiffs  the  sum  of  $195,122.47. 

The  defendants  in  their  answer  alleged  that  the  plaintiffs  had 
no  just  claim  against  the  defendants ;  that  the  defendants  were 
not  present  at  Paris  at  the  time  of  the  suit ;  and  that  the  defend- 
ants appeared  by  attorney  solely  for  the  purjxDse  of  protecting 
their  property  which  was  within  the  j»j:risdiction  of  the  French 
court.    The  answer  further  alleged  that  there  was  not  a  full  and 


FOREIGN    JUDGMENTS.  231 

fair  trial  in  the  lower  French  court,  and  consequently  the  judg- 
ment is  void. 

The  answer  further  alleged  that  it  would  be  against  natural 
justice  to  enforce  this  judgment  without  an  examination  of  the 
merits  thereof.  The  defendants  claim  also,  that  judgments  ren- 
dered in  the  United  States  may  be  examined  anew  in  the  French 
courts,  that  our  judgments  are  not  conclusive  in  France. 

The  plaintiffs  filed  a  replication  to  the  answer  denying  its 
allegations,  and  setting  up  in  bar  thereof  the  judgment  sued  on. 

The  circuit  court  directed  a  verdict  for  the  plaintiffs  in  the 
sum  of  $277,775.44,  being  the  amount  of  the  French  judgment 
and  interest.  The  defendants,  having  duly  excepted  to  the  rulings 
and  direction  of  the  court,  sued  out  a  writ  of  error. 

The  writ  of  error  in  the  action  at  law  and  the  appeal  in  the 
suit  in  equity  were  argued  together  in  this  court  January  19,  .?2, 
and  23,  1894:  and,  by  direction  of  the  court,  were  reargued  in 
April,  1894,  before  a  full  bench. 

Mr.  James  C.  Carter  and  Mr.  Elihu  Root  for  plaintiffs  in 
error  and  appellants.    Mr.  Horace  Russell  was  on  their  briefs. 

Mr.  Williaui  G.  Clwate,  (with  whom  was  Mr.  William  D. 
Shipinaji  on  the  brief,)  for  defendants  in  error  and  appellees. 

•J  Gray,  J.     In  order  to  appreciate  the  weight  of  the  various 

authorities  cited  at  the  bar,  it  is  important  to  distinguish  different 
kinds  of  judgments  Every  foreign  judgment,  of  whatever  nature, 
in  order  to  be  entitled  to  any  effect,  must  have  been  rendered  by 
a  court  having  jurisdiction  of  the  cause,  and  upon  regular  pro- 
ceedings and  due  notice.  In  alluding  to  different  kinds  of  judg- 
ments, therefore,  such  jurisdiction,  proceedings,  and  notice  will  be 
assumed.  It  will  also  be  assumed  that  they  are  untainted  by  fraud 
the  effect  of  which  will  be  considered  later. 

\  judgment  ;/;  rem,  adjudicating  the  title  to  a  ship  or  other 
movable  property  within  the  custody  of  the  court,  is  treated  as 
valid  everywhere.  As  said  by  Chief  Justice  Marshall:  "The  sen- 
tence of  a  competent  court,  proceeding  ///  rem,  is  conclusive  wilii 
respect  to  the  thing  itself,  and  operates  as  an  absolute  change  of 
the  property.  iJy  such  sentence,  the  right  of  the  former  owner 
is  lost,  and  a  complete  title  given  to  the  person  who  claims  under 
the  decree.  No  court  of  coordinate  jurisdiction  can  examine  the 
sentence.  The  question,  therefore,  respecting  its  conformity  to 
general  or  municipal  law  can  never  arise,  for  no  coordinate  tribu- 
nal is  capable  of  making  the  inquiry."     Williams  f.  Armroyd.  7 


232  PRIVATE    INTERNATIONAL    LAW. 

Cranch,  423,  432.  The  most  common  illustrations  of  this  are 
decrees  of  courts  of  admiralty  and  prize,  which  proceed  upon 
principles  of  international  law.  Croudson  v.  Leonard,  4  Cranch, 
434;  Williams  z'.  Armroyd,  above  cited  ;  Ludlow  v.  Dale,  i  Johns. 
Cas.  16.  Rut  the  same  rule  applies  to  judgments  in  rem  under 
municipal  law.  Hudson  v.,  Guestier,  4  Cranch,  293;  Ennis  v. 
Smith,  14  How.  400,  430;  Wisconsin  v.  Pelican  Ins.  Co.,  127  LJ. 
S.  265,  291  ;  Scott  ■:'.  McXeal,  154  U.  S.  34,  46;  Castrique  v.  Imrie, 
L.  R.  4  H.  L.  414;  Monroe  v.  Douglas,  4  Sandf,  Ch.  126. 

A  judgment  affecting  the  status  of  persons,  such  as  a  degree 
confirming  cr  dissolving  a  marriage,  is  recognized  as  valid  in 
every  country,  unless  contrary  to  the  policy  of  its  own  law.  Cot- 
tington's  case.  2  Swans.  326;  Roach  r.  Garvan,  i  Ves.  Sen.  157; 
Harvey  v.  Farnie,  8  App.  Cas.  43;  Cheely  v.  Clayton,  no  U.  S. 
701.  it  was  cf  a  foreign  sentence  of  divorce,  that  Lord  Chancellor 
Nottingham,  in  the  House  of  Lords,  in  1688,  in  Cottington's  case, 
above  cited,  said:  "It  is  against  the  law  of  nations  not  to  give 
credit  to  the  judgments  and  sentences  of  foreign  countries,  till 
they  be  reversed  by  the  law.  and  according  to  the  form,  of  those 
countries  wherein  they  were  given.  For  what  right  hath  one 
kingdom  to  reverse  the  judgment  of  another?  And  how  can  we 
refuse  to  let  a  sentence  take  place  till  it  be  reversed?  And  what 
confusion  would  follow  in  Christendom,  if  they  should  serve  us 
so  abroad,  and  give  no  credit  to  our  seiitences." 

Other  judgments,  not  strictly  in  rem,  under  which  a  person 
has  been  compelled  to  pay  money,  are  so  far  conclusive  that  the 
justice  of  the  payment  cannot  be  impeached  in  another  country, 
so  as  to  compel  him  to  pay  it  again.  For  mstance  a  judgment  in 
foreign  attachment  is  conclusive,  as  between  the  parties,  of  the 
right  to  the  property  or  money  attached.  Story  on  Conflict  of 
Laws  (2d  ed.),  §  592a.  And  if.  on  the  dissolution  of  a  partner- 
ship, one  partner  promises  to  indemnify  the  other  against  the 
debts  of  the  partnership,  a  judgment  for  such  a  debt,  under  which 
the  latter  has  been  compelled  to  pay  it,  is  conclusive  evidence  of 
the  debt  in  a  suit  by  him  to  recover  the  amount  upon  the  promise 
of  indemnity.  It  was  of  such  a  judgment,  and  in  such  a  suit,  that 
Lord  Nottingham  said  :  "Let  the  plaintiff  receive  back  so  much 
of  the  money  brought  into  court  as  may  be  adequate  to  the  sum 
paid  on  the  sentence  for  custom,  the  justice  whereof  is  not  exam- 
inable here."  Gold  v.  Canham  ( 1689),  2  Swans.  325 ;  s.  c.  i  Cas. 
in  Ch.  311.  See  also  Tarleton  v.  Tarleton,  4  M.  &  S.  20 ;  Konitzky 
V.  Meyer,  49  N.  Y.  571. 


FOREIGN    JUDGMENTS.  233 

Other  foreign  judgments  which  have  been  held  conclusive  of 
the  matter  adjudged  were  judgments  (Hscharging  obHgations  con- 
tracted in  the  foreign  country  between  citizens  or  residents  thereof. 
Story "s  Conflict  of  Laws,  §§  330-341  ;  May  f.  IJreed,  7  Cush.  15. 
Such  was  the  case,  cited  at  the  bar,  of  burroughs  or  Uurrows  v. 
Jamineau  or  Jemino,  Mos.  i  ;  s.  c.  2  Stra.  733 ;  2  Eq.  Cas.  Ab.  525, 
pi.  7;  12  Vin.  Ab.  Sj,  pi.  9;  Sel.  Cas.  in  Ch.  69;  i  Dick.  48. 

In  that  case,  bills  of  exchange,  drawn  in  London,  were  nego- 
tiated, indorsed,  and  accepted  at  Leghorn  in  Italy,  by  the  law  of 
which  an  acceptance  became  void  if  the  drawer  failed  without 
leaving  efitVcts  in  the  acceptor's  hands.  The  acceptor,  accordingly, 
havintr  received  advices  that  the  drawer  had  failed  before  the 
acceptances,  brought  a  suit  at  Leghorn  against  the  last  indorsees, 
to  be  discharged  of  his  acceptances,  paid  the  money  into  court 
and  obtained  a  sentence  there,  by  which  the  acceptances  were 
vacated  as  against  those  indorsees  and  all  the  indorsers  and  nego- 
tiators of  the  bills,  and  the  money  deposited  was  returned  to  him. 
Being  afterwards  sued  at  law  in  England  by  subsequent  holders 
of  the  bills,  he  applied  to  the  Court  of  Chancery  and  obtained  a 
perpetual  injunction.  Lord  Chancellor  King,  as  reported  by 
Strange,  "was  clearly  of  opinion  that  this  cause  was  to  be  deter- 
mined according  to  the  local  laws  of  the  place  where  the  bill  was 
negotiated,  and  the  plaintiff's  acceptance  of  the  bill  having  been 
vacated  and  declared  void  by  a  court  of  competent  jurisdiction, 
he  thought  that  sentence  v/as  conclusive  and  bound  the  Court  of 
Chancery  here ;"  as  reported  in  Viner,  that  "the  court  at  Leghorn 
had  jurisdiction  of  the  thing,  and  of  the  persons  ;"  and,  as  reported 
by  Moselv,  that,  though  "the  last  indorsees  had  the  sole  property 
of  the  bills,  and  were  therefore  made  the  only  parties  to  the  suit 
at  Leghorn,  yet  the  sentence  made  the  acceptance  void  against 
the  now  defendcUits  and  all  others."  It  is  doubtful,  at  the  least, 
whether  such  a  sentence  was  entitled  to  the  effect  given  to  it  by 
Lord  Chancellor  King.  See  Novelli  v.  Rossi,  2  B.  &  Ad.  757; 
Castrique  v.  Imrie,  L.  R.  4  H.  L.  414,  435;  2  Smith's  Lead.  Cas. 
(2ded.)  450- 

The  remark  of  Lord  Hardwicke,  arguendo,  as  Chief  Justice, 
in  Boucher  v.  Lawson  (1734),  that  "the  reason  gone  upon  b^ 
Lord  Chancellor  King,  in  the  case  of  Borroughs  z'.  Jamineau.  was 
certainly  right,  that  where  any  court,  whether  foreign  or  domes- 
tic, that  has  the  proper  jurisdiction  of  the  case,  makes  a  determi- 
nation, it  is  conclusive  to  all  other  courts,"  evidently  had  reference, 
as  the  context  shows,  to  judgments  of  a  court  having  jurisdiction 


234.  PRIVATE    INTERNATIONAL    LAW, 

of  the  thing-:  and  did  no'  toiicli  the  effect  of  an  executory  judg- 
ment for  a  debt.  Cas.  temp.  Hardw.  85,  89;  s.  c.  Cunningham, 
144,  148 

In  former  times,  foreign  degrees  in  admiralty  in  personam 
were  executed,  even  by  imprisonment  of  the  defendant,  by  the 
Court  of  Admiralty  in  England,  upon  letters  rogatory  from  the 
foreign  sovereign,  ^^•ithout  a  new  suit.     Its  right  to  do  so  was 
recognized  by  the  Court  of  King's  Bench  in  1607  in  a  case  of 
habeas  corpus,  cited  by  the  plaintiffs,  and  reported  as  follows:  "If 
a  man  of  Frizeland  sues  an  Englishman  in  Frizeland  before  the 
Governor  there,  and  there  recovers  against  him  a  certain  sum ; 
upon  which  the  Englishman,  not  having  sufficient  to  satisfy  it, 
comes  into  England,  upon  which  the  Governor  sends  his  letters 
massive  into  England,  oinnes  niagistratiis  infra  regnuni  Angliar 
rogans,  to  make  execution  of  the  said  judgment.     The  Judge  of 
the  Admiralty  may  execute  this  judgment  by  imprisonment  of  the 
party,  and  he  shall  not  be  delivered  by  the  common  law ;  for  this 
is  by  the  law  of  nations,  that  the  justice  of  one  nation  should  be 
aiding  to  the  justice  of  another  nation,  and  for  one  to  execute  the 
judgment  of  the  other;  and  the  law  of  England  takes  notice  of 
this  law,  and  the  Judge  of  the  Admiralty  is  the  proper  magistrate 
for  this  purpose ;  for  he  only  hath  the  execution  of  the  civil  law 
within  tlie  realm.     Pasch.  5  Jac.  B.  R.  Weir's  case,  resolved  upon 
an  habeas  corpus,  and  remanded."     i  Rol.  Ab.  530.  pi.  12;  6  Vin. 
Ab.  512,  pi.  12.     But  the  only  question  there  raised  or  decided 
was  of  the  power  of  the  English  Court  of  Admiralty,  and  not  of 
the  conclusiveness  of  the  foreign  sentence ;  and  in  later  times  the 
mode  of  enforcing  a  foreign  decree  in  admiralty  is  by  a  new  libel. 
See  the  City  of  ^Mecca,  5  P.  D.  28,  and  6  P.  D.  106. 

The  extraterritorial  effect  of  judgments  in  personam,  at  law 
or  in  equity,  may  differ,  according  to  the  parties  to  the  cause.  A 
judgment  of  that  kind  between  two  citizens  or  residents  of  the 
country,  and  thereby  subject  to  the  jurisdiction,  in  which  it  is  ren- 
dered, may  be  held  conclusive  as  between  them  everywhere.  So, 
if  a  foreigner  invokes  the  jurisdiction  by  bringing  an  action 
against  a  citizen,  both  may  be  held  bound  by  a  judgment  in  favor 
of  either.  And  if  a  citizen  sues  a  foreigner,  and  judgment  is  ren- 
dered in  favor  of  the  latter,  both  may  be  held  equally  bound. 
Ricardo  v.  Garcias,  12  CI.  &  Fin.  368;  The  Griefswald,  Swabey, 
430,  435;  Barber  v.  Lamb,  8  C.  B.  (n.  s.)  95  ;  Lea  v.  Deakin,  11 
Biss.  23. 

The  effect  to  which  a  judgment,  purely  executory,  rendered 


FOREIGN    JUDGMENTS.  235 

in  favor  of  a  citizen  or  resident  of  the  country,  in  a  suit  theie 
brought  by  him  against  a  foreigner,  may  be  entitled  in  an  action 
thereon  against  the  latter  in  his  own  country — as  is  the  case  now 
before  us — presents  a  more  difficult  question,  upon  which  there 
has  been  some  diversity  of  opinion. 

Early  in  the  last  century,  it  was  settled  in  England  that  a 
foreign  judgment  on  a  debt  was  considered  not,  like  a  judgment 
of  a  domestic  court  of  record,  as  a  record  or  a  specialty,  a  lawful 
consideration  for  which  was  conclusively  presumed ;  but  as  a 
simple  contract   only. 

In  recent  times,  foreign  judgments  rendered  within  the  do- 
minions of  the  English  Crown,  and  under  the  law  of  England, 
after  a  trial  on  the  merits,  and  no  want  of  jurisdiction,  and  no 
fraud  or  m.istake,  being  shown  or  offered  to  be  shown,  have  been 
treated  as  conclusive  by  the  highest  courts  of  New  York,  Maine, 
and  Illinois.  Lazier  v.  Wescott  (1862),  26  N.  Y.  146,  150;  Dun- 
stan  V.  Higgins  (1893),  138  N.  Y.  70,  74;  Rankin  v.  Goddard 
(1866),  54  Me.  28,  and  (1868)  55  Me.  389;  Baker  v.  Palmer 
(1876),  83  111.  568.  In  two  early  cases  in  Ohio,  it  was  said  that 
foreign  judgments  were  conclusive,  unless  shown  to  have  been 
obtained  by  fraud.  Silver  Lake  Dank  z'.  Harding  ( 1832),  5  Ohio, 
545,  547;  Anderson  z:  Anderson  (1837),  8  Ohio,  108,  no.  Cut 
in  a  later  case  in  that  State  it  was  said  that  they  were  only  priuia 
facie  evidence  of  indebtedness.  Pelton  v.  Platner  (1844),  13 
Ohio,  209,  217.  In  Jones  v.  Jamison  (  i860),  15  La.  Ann.  35.  the 
decision  was  only  that,  by  virtue  of  the  statutes  of  Louisiana,  a 
foreign  judgment  merged  the  original  cause  of  action  as  against 
the    plaintiff. 

In  view  of  all  the  authorities  upon  the  subject,  and  of  the 
trend  of  judicial  opinion  in  this  country  and  in  England,  following 
the  lead  of  Kent  and  Story,  we  are  satisfied  that,  where  there 
has  b'^en  opportunity  for  a  full  and  fair  trial  abroad  before  a 
court  of  competent  jurisdiction,  conducting  the  trial  upon  regular 
proceedings,  after  due  citation  or  voluntary  appearance  of  the 
dcfenilant,  and  under  a  system  of  jurisprudence  likely  to  secure  an 
impartial  aiiniinistration  of  justice  between  the  citizens  of  its  own 
country  and  those  of  other  countries,  and  there  is  nothing  to  show 
either  prejudice  in  the  coiirt,  or  in  the  system  of  laws  under 
wliich  it  was  sitting,  or  fraud  in  procuring  the  judgment,  or 
any  other  special  reason  why  the  comity  of  this  nation  should  not 
allow  its  full  effect,  the  merits  of  the  case  should  not,  in  an  action 
brought  in  this  country  upon  the  judgment,  be  tried  afresh,  as  on 


236  PRIVATi'    INTERNATIONAL    LAW. 

a  new  trial  or  an  appeal,  upon  the  mere  assertion  of  the  party 
that  the  judgment  was  erroneous  in  law  or  in  fact.  The  defend- 
ants, therefore,  cannot  be  permitted,  upon  that  general  ground, 
to  contest  the  validity  or  the  effect  of  the  judgment  sued  on. 

But  they  have  sought  to  impeach  that  judgment  upon  several 
other  grounds,  which  require  separate  consideration. 

It  is  objected  that  the  appearance  and  litigation  of  the  defend- 
ants in  the  French  tribunals  were  not  voluntary,  but  by  legal  com- 
pulsion, and  therefore  the  French  courts  never  acquired  such 
jurisdiction  over  the  defendants,  that  they  should  be  held  bound 
by  the  judgment. 

Upon  the  question  what  should  be  considered  such  a  volun- 
tary appearance,  as  to  amount  to  a  submission  to  the  jurisdiction 
of  a  foreign  court,  there  has  been  some  difference  of  opinion  in 
England. 

But  it  is  now  settled  in  England  that,  while  an  appearance 
ty  the  defendant  in  a  court  of  a  foreign  country,  for  the  purpose 
of  protecting  his  property  already  in  the  possession  of  that  court, 
may  not  be  deemed  a  voluntary  appearance,  yet  an  appearance 
solely  for  the  purpose  of  protecting  other  property  in  that  country 
from  seizure  is  considered  as  a  voluntary  appearance.  De  Crosse 
Brissac  i>.  Rathbone  ( i860  ■,  6  H.  &  N.  301  ;  s.  c.  20  Law  Journal 
(n.  s.),  Exch.  238;  Schibsby  v.  Westenholz  (1870),  L.  R.  6  Q. 
B.  155,  162;  Voinet  v.  Barrett  (1885),  i  Cab.  &  El.  554;  s.  c. 
54  Law  Journal  (n.  s.),  Q.  B.  521.  and  55  Law  Journal  (n.  s.), 

Q-  B.  39- 

The  present  case  is  not  one  of  a  person  travelling  through 
or  casually  found  in  a  foreign  country.  The  defendants,  although 
they  were  not  citizens  or  residents  of  France,  but  were  citizens 
and  residents  of  the  State  of  New  York,  and  their  principal  place 
of  business  was  in  the  city  of  New  York,  yet  had  a  storehouse 
and  an  agent  in  Pans,  and  were  accustomed  to  purchase  large 
quantities  of  goods  there,  although  they  did  not  make  sales  in 
France.  Under  such  circumstances,  evidence  that  their  sole 
object  in  appearing  and  carrying  on  the  litigation  in  the  French 
courts  was  to  prevent  property,  in  their  storehouse  at  Paris, 
belonging  to  tliem,  and  within  the  jurisdiction,  but  not  in  the 
custody,  of  those  courts,  from  being  taken  in  satisfaction  of  any 
judgment  that  might  be  recovered  against  them,  would  not, 
according  to  our  law,  show  that  those  courts  did  not  acquire  juris- 
diction of  the  persons  of  the  defendants. 

It   is  now  established  in  England  by  well  considered  and 


FOREIGN    JUDGMENTS.  237 

Strongly  reasoned  decisions  of  the  Court  of  Appeal,  that  foreign 
judgments  may  be  impeached,  if  procured  by  false  and  fraudulent 
representations  and  testimony  of  the  plaintiff,  even  if  the  same 
question  of  fraud  was  presented  to  and  decided  by  the  foreign 
court.     .     .     . 

But  whether  these  decisions  can  be  followed  in  regard  to* 
foreign  judgments,  consistently  with  our  own  decisions  as  to  im- 
peaching domestic  judgments  for  fraud,  it  is  unnecessary  in  this 
case  to  determine,  because  there  is  a  distinct  and  independent 
ground  upon  which  we  are  satisfied  that  the  comity  of  our  nation 
does  not  require  us  to  give  conclusive  effect  to  the  judgments  of 
the  courts  of  France ;  and  that  ground  is,  the  want  of  reciprocity, 
on  the  part  of  France,  as  to  the  effect  to  be  given  to  the  judg- 
ments of  this  and  other  foreign  countries.     .     .     . 

There  is  hardly  a  civilized  nation  on  either  continent,  which, 
by  its  general  law,  allows  conclusive  effect  to  an  executory  foreign 
judgment  for  the  recovery  of  money.  In  France,  and  in  a  few 
smaller  States, — Norway,  Portugal,  Greece,  Monaco,  and  Hayti, 
— the  merits  of  the  controversy  are  reviewed,  as  of  course,  allow- 
ing to  the  foreign  judgment,  at  the  most,  no  more  effect  than  of 
being  priiva  facie  evidence  of  the  justice  of  the  claim.  In  the 
great  majority  of  the  countries  on  the  continent  of  Europe, — in 
Belgium,  Holland,  Denmark,  Sweden,  Germany,  in  many  cantons' 
of  Switzerland,  in  Russia  and  Poland,  in  Roumania,  in  Austria 
and  Hungary  (perhaps  in  Italy),  and  in  Spain. — as  well  as  in 
Egypt,  in  Mexico,  and  in  a  great  part  of  South  America,  the 
judgment  rendered  in  a  foreign  country  is  allowed  the  same  effect 
only  as  the  courts  of  that  country  allow  to  the  judgments  of  the 
country  in  which  the  judgment  in  question  is  sought  to  be 
executed. 

The  prediction  of  Mr.  Justice  Story  (in  section  6i8  of  his- 
Commentaries  on  the  Conflict  of  Laws,  already  cited)  has  thus 
been  tulfilled,  and  the  rule  of  reciprocity  has  worked  itself  firmly 
into  the  structure  of  international  jurisprudence. 

The  leasonable,  if  not  the  necessary,  conclusion  appears  to  us 
to  be  that  judgments  rendered  in  France,  or  in  any  other  foreign 
country,  by  the  lavv-s  of  which  our  own  judgments  are  reviewable 
upi''i  the  merits,  are  not  entitled  to  full  credit  and  coTiclusive 
effect  when  sued  upon  in  this  country,  but  are  prima  facie 
evidence  only  of  the  justice  of  the  plaii:tift"s  claim. 

In  holding  such  a  judgment,  for  want  of  reciprocity,  not  to 
be  conclusive  evidence  of  the  merits  of  the  claim,  \\c  do  not  i-ro- 


238  PRIVATE    INTERNATIONAL    LAW. 

cet'd  upon  any  theory  of  retaliation  upon  one  person  by  reason 
of  injustice  done  to  another;  but  upon  the  broad  ground  that 
international  law  is  founded  upon  mutuality  and  reciprocity,  and 
that  by  the  principles  of  international  law  recognized  in  most 
civilised  nations,  and  by  the  comity  of  our  own  country,  which  it 
is  our  judicial  duty  to  know  and  to  declare,  the  judgment  is  not 
entitled  to  be  considered  conclusive. 

By  our  law,  at  the  time  of  the  adoption  of  the  Constitution, 
a  foreign  judgment  was  considered  as  prima  facie  evidence,  and 
not  conclui^ive.  There  is  no  statute  of  the  United  States,  and 
no  treaty  of  the  United  States  with  France,  or  with  any  other 
nation,  which  has  changed  that  law,  or  has  made  any  provision 
upon  the  subject.  It  is  not  to  be  supposed  that,  if  any  statute  or 
treaty  had  been  or  should  be  made,  it  would  recognize  as  con- 
clusive the  judgments  of  any  country,  which  did  not  give  like 
effect  to  our  own  judgments.  In  the  absence  of  statute  or  treaty, 
it  appears  to  us  equally  unwarrantable  to  assume  that  the  comity 
of  the  United  States  requires  anything  more. 

If  we  should  hold  this  judgment  to  be  conclusive,  we  should 
allow  it  an  effect  to  ^^■hich,  supposing  the  defendants'  offer  to  be 
sustained  by  actual  proof,  it  would,  in  the  absence  of  a  special 
treaty,  be  entitled  in  hardly  any  other  country  in  Christendom, 
except  the  country  in  which  it  was  rendered.  If  the  judgment  had 
been  rendered  in  this  country,  or  in  any  other  outside  of  the  juris- 
diction of  France,  the  French  courts  would  not  have  executed  or 
enforced  it,  except  after  examining  into  its  merits.  The  very 
judgment  now  sued  on  would  be  held  inconclusive  in  almost  any 
other  country  than  France.  In  England,  and  in  the  Colonies 
subject  to  the  law  of  England,  the  fraud  alleged  in  its  procure- 
ment would  be  a  sufficient  ground  for  disregarding  it.  In  rhe 
courts  of  nearly  every  other  nation,  it  would  be  subject  to  re- 
examination, either  merely  because  it  was  a  foreign  judgment, 
or  because  judgments  of  that  nation  would  be  re-examinable  in 
the  courts  of  France. 

For  these  reasons,  in  the  action  at  law,  the 

}ud<^incnt  is  reversed,  and  the  cause  remanded  to  the  Circuit 

Court  ivifh  directions  to  set  aside  the  verdict  and  to  order 

a  new  trial. 
For  the  same  reasons,  in  the  suit  in  equity  between  these 
parties,  the  foreign  judgment  is  not  a  bar,  and,  therefore,  the 

Decree  dismissing  the  bill  is  revers-'d,  the  plea  adjudged  had, 

and  the  cause  remanded  to  the  Circuit  Court  for  further 

proceedings  not  inconsistent  zvith  this  opinion. 


FOREIGN    JUDGMENTS.  239 

Mr.  Chief  Justice  Fuller,  with  whom  concnrn.'d  Mr.  Justice 
TIarl.\xd,  Mr.  Justice  Brewer,  and  Mr.  Justice  Jackson,  dis-    // 
sentin.c^. 

riaintiffs  brouf^^ht  their  action  on  a  judj^ment  recovered  by 
them  against  the  defendants  in  the  courts  of  France,  which  courts 
had  jurisdiction  over  person  and  subject-matter,  and  in  respect 
of  which  judpiicnt  no  fraud  was  alleged,  except  in  particulars 
contested  in  and  considered  by  the  French  courts.  The  question 
is  whether  under  these  circumstances,  and  iii  the  absence  of  a 
treaty  or  act  of  Congress,  the  judgment  is  rc-examinablc  upon 
the  merits.  This  ijuestion  I  regard  as  one  to  be  deternnned  by  the 
ordinary  and  settled  rule  in  respect  of  allowing  a  partv,  who  lias 
had  an  opportunity  to  prove  his  case  in  a  competent  cotu-i,  to 
retry  it  un  the  merits,  and  it  seems  to  me  that  the  doctrine  of 
res  judicata  applicable  to  domestic  judgments  should  be  app'icd 
to  foreign  judgments  as  well,  and  rests  on  the  same  sreneral 
ground  of  public  policy  that  there  should  be  an  end  of  litigation. 

This  application  of  the  doctrine  is  in  accordance  with  our  own 
jurisprudence,  and  it  is  not  necessary  that  we  should  hold  it  to  bo 
required  by  some  rule  of  international  law.  Tlio  fundaniontal 
principle  concerning  judgments  is  that  disputes  are  finally  deter- 
mined by  them,  and  I  am  unable  to  perceive  why  a  judgment  in 
pcrsonant  which  is  not  open  to  question  on  the  ground  of  want  of 
jurisdiction,  either  intrinsically  or  over  the  parties,  or  of  fraud, 
or  on  anv  other  recognized  ground  of  impeachment,  should  not  be 
held  infer  partes,  though  recovered  abroad,  conclusive  on  the 
merits. 

Jud.gments  are  executory  while  unpaid,  but  in  this  country 
execution  is  not  given  upon  a  foreign  judgment  as  such,  it  being 
enforced  through  a  new  judgment  obtained  in  an  action  brought 
for  that  purpose. 

The  principle  that  requires  litigation  to  be  treated  as  termi- 
r.ated  by  final  judgment  properly  rendered,  is  as  applicable  to  a 
judgment  proceeded  on  in  such  an  action,  as  to  any  other,  and 
forbids  the  allowance  to  the  judgment  debtor  of  a  retrial  of  the 
original  cause  of  action,  as  of  right,  in  disregard  of  the  obligation 
to  pay  arising  on  the  judgment  and  of  the  rights  acquired  by  the 
judgment  creditor  thereby. 

That  any  other  conclusion  is  inadmissible  is  forcibly  illus- 
trated by  the  case  in  hand.  PlaintiflFs  in  error  were  trading 
copartners  in  Paris  as  well  as  in  New  York,  and  had  a  place  of 
biifiness  in   Paris  at  the  time  of  these  transactions  and  of  the 


240  PRIVATE    INTERNATIONAL    LAW. 

commencement  of  the  suit  against  them  in  France.    The  subjects 
of  the  suit  were  commercial   transactions,   having  their  origin, 
and  partly  performed,  in  France  under  a  contract  there  ii  ade, 
and  alleged  to  be  modified  by  the  dealings  of  the  parties  there; 
and  one  of  the  claims  agamst  them  was  for  goods  sold  to  them 
there.     Thev  appeared  generally  in  the  case,  without  protest,  and 
by  counterclaims  relating  to  the  same  general  course  of  business,  a 
part  of  them  only  connected  with  the  claims  against  them,  became 
actors  in  the  suit  and  submitted  to  the  courts  their  own  claims 
for  affirmative  relief,  as  v;ell  as  the  claims  against  them.     The 
courts  were  competent,  and  they  took  the  chances  of  a  decision  in 
their  favor.     As  traders  in  France  they  were  under  the  protection 
of  its  laws  and  were  bound  by  its  laws,  its  commercial  usages,  and 
its  rules  of  procedure.     The  fact  that  they  were  Americans  and 
the  opposite  parties  were  citizens  of  France  is  immaterial,  and 
there  is  no  suggestion  on  the  record  that  those  courts  proceeded 
on  any  other  ground  than  that  all  litigants,  whatever  their  nation- 
ality, were  entitled  to  equal  justice  therein.     If  plaintiffs  in  error 
had'  succeeded  in  their  cross  suit  and  recovered  judgment  against 
defendants  in  error,  and  had  sued  them  here  on  that  judgment, 
defendants  in  error  would  not  have  been  permitted  to  say  that 
the  judgment  in  France  was  not  conclusive  against  them.     As  it 
was,  defendants  in  error  recovered,  and  I  think  plaintiffs  in  error 
are  not  entitled  to  try  their  fortune  anew  before  the  courts  of 
this  country  on  the  same  matters  voluntarily  submitted  by  them 
to  the  decision  of  the  foreign  tribunal.    We  are  dealing  with  the 
judgment  of  a  court  of  a  civilized  country,  whose  laws  and  sys- 
tem of  justice  recognized  the  general  rules  in  respect  to  property 
and  rights  between  man  and  man  prevailing  among  all  civilized 
peoples.    Obviously  the  last  persons  who  should  be  heard  to  com- 
plain are  those  who   identified  themselves  with  the  business  of 
that  country,  knowing  that  all  their  transactions  there  would  be 
subject  to  the   local   laws  and  modes   of  doing  business.     The 
French  courts  appear  to  have  acted  "judically,  honestly,  and  with 
the  intention  to  arrive  at  the  right  conclusion ;"  and  a  result  thus 
reached  ought  not  to  be  disturbed. 

[The  learned  Chief  Justice  here  recited  extracts  from  the 
opinions  in  Nouvion  v.  Freeman,  15  App.  Cas.  i,  and  Godard  v. 
Gray,  L.  K.  6  Q.  P..  139,  and  continued:] 

In  any  aspect,  it  is  difficult  to  see  why  rights  acquired  under 
foreign  judgments  do  not  belong  to  the  category  of  private  rights 
acquired  under  foreign  laws.     Now  the  rule  is  universal  in  this 


KOKEIGN    JUDGMENTS.  241 

country  that  private  rights  acquired  under  the  laws  of  foreif^n 
States  will  he  respected  and  enforced  in  our  courts  unless  c(jn- 
trary  to  the  policy  or  prejudicial  to  the  interests  of  the  State 
where  this  is  sought  to  be  done ;  and  although  the  source  of  this 
rule  may  have  been  the  comity  characterizing  the  intercourse 
between  nations,  it  prevails  to-day  by  its  own  strength,  and  the 
right  to  the  application  of  the  law  to  which  the  particular  trans- 
action is  subject  is  a  juridical  right. 

And,  without  going  into  the  refinements  of  the  publicists  on 
the  subject,  it  appears  to  me  that  that  law  finds  authoritative  ex- 
pression in  the  judgments  of  courts  of  competent  jurisdiction  over 
parties  and  subject-matter. 

It  is  held  by  the  majority  of  the  court  that  defendants  cannot 
be  permitted  to  contest  the  validity  and  efifect  of  this  judgment 
on  the  general  ground  that  it  was  erroneous  in  law  or  in  fact ; 
and  the  special  grounds  relied  on  are  seriatim  rejected.  In  respect 
of  the  last  of  these,  that  of  fraud,  it  is  said  that  it  is  unnecessary 
in  this  case  to  decide  whether  certain  decisions  cited  in  regard 
to  impeaching  foreign  judgments  for  fraud  could  be  followed 
consistently  with  our  own  decisions  as  to  impeaching  domestic 
judgments  for  that  reason,  "because  there  is  a  distinct  and  inde- 
pendent ground  upon  which  we  are  satisfied  that  the  comity  of 
our  nation  does  not  require  us  to  give  conclusive  efifect  to  the 
judgments  of  the  courts  of  France,  and  that  ground  is  the  want 
of  reciprocity  on  the  part  of  France  as  to  the  efifect  to  be  given 
to  the  judgments  of  this  and  other  foreign  countries."  And  the 
conclusion  is  announced  to  be  "that  judgments  rendered  in  France 
or  in  any  other  foreign  country,  by  the  laws  of  which  our  own 
judgments  are  reviewable  upon  the  merits,  are  not  entitled  to  full 
credit  and  conclusive  efifect  when  sued  upon  in  this  country,  but 
are  prima  facie  evidence  only  of  the  justice  of  the  plaintiflP's  claim." 
In  other  words,  that  although  no  special  ground  exists  for  im- 
peaching the  original  justice  of  a  judgment,  such  as  want  of  juris- 
diction or  fraud,  the  right  to  retry  the  merits  of  the  original 
cause  at  large,  defendant  being  put  upon  proving  those  merits, 
should  be  accorded  in  every  suit  on  judgments  recovered  in 
countries  where  our  own  judgments  are  not  given  full  efTect,  on 
that  ground  merely. 

\  cannot  yield  my  assent  to  the  proposition  that  because  by 

legislation  and  judicial  decision  in  France  that  effect  is  not  there 

given  to  judgments  recovered  in  this  country  which,  according 

to  our  jurisprudence,  we  think   should   be  given   to   judgments 

i6 


242  PRIVATE    INTERNATIONAL    LAW. 

wherever  recovered,  (subject,  of  course,  to  the  recognized  ex- 
ceptions,) therefore  we  should  pursue  the  same  hne  of  conduct 
as  respects  the  judgments  of  French  tribunals.  The  application 
of  the  doctrine  of  res  judicata  does  not  rest  in  discretion;  and 
it  is  for  the  government,  and  not  for  its  courts,  to  adopt  the 
principle  of  retorsion,  if  deemed  under  any  circumstances  desir- 
able or  necessary. 

As  the  court  expressly  abstains  from  decidmg  whether  the 
judgment  is  impeachable  on  the  ground  of  fraud,  I  refrain  from 
any  observations  on  that  branch  of  the  case. 

Mr.  Justice  Harlan,  Mr.  Justice  Brewer,  and  Mr.  Justice 
Jackson  concur  in  this  dissent. 


FERGUSON  V.  CRAWFORD,   1877. 

[70  N.  Y.  253.] 

Rapallo,  J.  This  action  was  brought  to  foreclose  a  mort- 
gage, held  by  the  plamtiff,  on  certain  real  estate  in  the  county  of 
Westchester.  One  of  the  defences  was,  that  the  rights  of  the 
plaintiff,  as  mortgagee,  had  been  barred  by  a  judgment  of  fore- 
closure of  a  mortgage  prior  to  his,  in  favor  of  one  McFarquahar, 
covering  the  same  premises,  under  which  judgment  the  premises 
had  been  sold  to  the  defendant  Horton.  It  was  alleged  in  the 
answer  that  the  plaintiff'  was  a  defendant  in  the  McFarquahar 
action,  in  which  the  judgment  had  been  rendered,  and  appeared 
therein,  by  John  W.  Mills,  as  his  attorney,  but  did  not  put  in  any 
answer. 

On  the  trial  of  the  present  action,  the  defendants,  in  support 
of  this  defence,  put  in  evidence  the  judgment-roll  in  the  last-men- 
tioned action,  which  roll  contained  a  notice  of  appearance  for  the 
present  plaintiff,  and  a  consent  that  judgment  be  entered,  purport- 
mg  to  be  signed  by  Mills.  The  judgment  was  entered  by  default 
for  want  of  an  answer,  and  on  this  consent,  and  recited  that  the 
summons  had  been  served  on  the  defendants  therein,  and  that  none 
of  them  had  appeared,  except  the  present  plaintiff,  by  John  W. 
Mills,  his  attorney,  and  some  others  named  in  the  judgment. 

Thereupon  the  plaintiff  called  Mills  as  a  witness,  and  olTered 
to  prove  by  him,  ist.  That  the  signature  to  the  notice  of  appear- 
ance and  consent  was  a  forgery ;  2d.  That  Mills  was  never  author- 
ized to  appear  for  the  plaintiff ;  and  3d.  That  he  never  did  appear 
for  him. 


FOREIGN    JUDGMENTS.  243 

No  proof  of  service  of  the  summons  on  the  plaintif:  is 
attached  to  or  contained  in  that  judgment-roll,  and  it  appears  to 
be  conceded  on  the  present  argument,  as  matter  of  fact,  that  no 
such  service  was  made.  The  defendants  rely  wholly  upon  the 
effect  of  the  recital  in  the  judgment  and  the  notice  of  appearance 
contained  in  the  judgment-roll,  and  claim  that  in  a  collateral 
action  these  import  absolute  verity  and  cannot  be  contradicted  by 
extrinsic  evidence. 

They  also  claim  that  the  case  of  Brown  v.  Niclwls  (42  N.  Y., 
26)  is  decisive  of  this  case.  There  a  judgnient  had  been  recov- 
ered against  a  defendant  who  had  not  been  served  with  process, 
but  for  whom  an  attorney  had  appeared  without  authority,  and  it 
was  held  by  this  court  that  the  judgment  could  not  be  attacked 
on  that  ground  for  want  of  jurisdiction  in  a  collateral  proceeding. 

That  decision  does  not  reach  the  present  case.  It  is  not 
founded  upon  any  doctrine  which  precludes  a  party  from  show- 
ing, as  matter  of  fact,  that  he  was  never  brought  before  the  court, 
or  appeared  in  it.  but  is  based  upon  a  long  line  of  authority,  which 
holds  that  when  an  attorney  of  the  court  appears  for  a  party  his 
appearance  is  recognized  and  his  authority  will  be  presumed  to 
the  extent,  at  least,  of  giving  validity  to  the  proceeding.  That  he 
is  an  officer  of  the  court,  amenable  to  it  for  misconduct,  and  to 
any  party  for  wdiom  he  assumes  to  act  without  authority,  for  all 
damages  occasioned  by  such  action,  and  for  reasons  of  public 
policy  the  court  holds  the  appearance  good,  leaving  the  aggrieved 
party  to  his  action  for  damages  against  the  attorney,  granting 
relief  against  the  judgment,  only  in  a  direct  application,  and  in 
case  the  attorney  is  showai  to  be  irresponsible.  (Denton  v.  Noyes, 
6  Johns.,  296.)  This,  however,  is  an  entirely  different  case. 
The  offer  was  not  merely  to  show  that  the  attorney  was  not 
authorized  to  appear,  but  that  he  did  not  in  fact  appear,  and  that 
the  pretended  appearance  was  a  forgery. 

None  of  the  principles  upon  which  the  decisions  in  Denton  v. 
Noyes,  and  Broxvn  v.  Nichols  rest,  can  be  applied  to  such  a  case. 
There  is  no  act  of  any  officer  of  the  court  which  public  policy 
requires  should  be  recognized.  There  is  no  party  against  whom 
the  innocent  defendant  can  have  redress.  He  is  sought  to  be  held 
bound  by  a  judgment  when  he  was  never  personally  summoned 
or  had  notice  of  the  proceeding,  which  result  has  been  frequently 
declared  to  be  contrary  to  the  first  principles  of  justice,  and  this 
is  sought  to  be  accomplished  by  mean"  of  a  judgment  entered 
upon  forged  papers.     No  principle  of  public  policy  requires  or 


244  PRIVATE    INTERNATIONAL    LAW. 

sanctions  sustaining  such  a  judgment.  The  only  difficuUy  in  the 
case  arises  upon  the  objection  that  the  evidence  offered  tends  to 
contradict  the  record,  and  from  the  adjudications  which  attach  to 
the  judgment  of  a  court  of  general  jurisdiction,  a  conclusive  pre- 
sumption of  jurisdiction  over  the  parties,  which  cannot  be  contra- 
dicted except  by  matter  appearing  on  the  face  of  the  record  itself. 

ft  is  an  elementary  principle  recognized  in  all  the  cases  that, 
to  give  binding  effect  to  a  judgment  of  any  court,  whether  of 
general  or  limited  jurisdiction,  it  is  essential  that  the  court  should 
have  jurisdiction  of  the  person  as  well  as  the  subject-matter,  and 
that  the  want  of  jurisdiction  over  either  may  always  be  set  up 
agamst  a  judgment  when  sought  to  be  enforced,  or  any  benefit  is 
claimed  under  it.  There  is  no  difference  of  opinion  as  to  this 
general  rule,  but  the  point  of  difficulty  is  as  to  the  manner  in 
which  this  want  of  jurisdiction  must  be  made  to  appear,  in  the 
case  of  a  judgment  of  a  domestic  court  of  general  jurisdiction, 
acting  in  the  exercise  of  its  general  powers,  when  it  comes  in 
question  in  a  collateral  action:  Whether,  when  the  record  is 
silent  as  to  the  steps  taken  to  bring  the  parties  into  court,  it  may 
be  proved  by  evidence  that  they  were  not  legally  summoned  and 
did  not  appear;  or  whether,  when  the  record  recites  that  they 
were  summoned  or  appeared,  such  recitals  may  be  contradicted  by 
extrinsic  evidence :  or  whether  the  jurisdiction  over  the  person 
and  subject-matter  is  a  presumption  of  law,  which  cannot  be  con- 
tradicted, unless  it  appears  on  the  face  of  the  record  itself  that 
there  was  a  want  of  such  jurisdiction,  as  in  cases  where  the 
record  shows  that  the  service  of  process  was  by  publication  or 
some  other  method  than  personal. 

On  these  points  there  has  been  as  much  diversity  of  opinion, 
especially  between  the  courts  of  this  State  and  those  of  other 
States,  as  upon  any  general  question  which  can  be  mentioned, 
although  there  has  yet  been  no  authoritative  adjudication  in  this 
State  on  the  subject.  It  is  well  settled  by  our  own  decisions, 
that  in  the  case  of  a  judgment  of  a  court  of  general  jurisdiction 
of  a  sister  State,  although  it  is  entitled  to  the  benefit  of  the  pre- 
sumption of  jurisdiction  which  exists  in  favor  of  a  judgment  of 
one  of  our  own  courts,  yet  the  want  of  jurisdiction  may  be  ^howo 
by  extrinsic  evidence,  and  that  even  a  recital  in  the  judgment- 
record  that  the  defendant  was  served  with  process,  or  appeared 
by  attorney,  or  of  any  other  jurisdictional  fact,  is  not  conclusive, 
but  may  be  contradicted  by  extrinsic  evidence.  {Borden  v.  Fitch, 
15  John.,  121;  Starbuck  v.  Murray,  5  Wen.,  148;  Shiinnvay  v. 


FOREIGN    JUDGMENTS.  245 

StiUman,  6  Wen.,  447 ;  Kerr  v.  Kerr,  41  N.  Y.,  272 ;  Hoffman  v. 
Hoffman,  46  N.  Y.,  30.) 

And  the  same  rule  prevails  in  some  of  the  other  States  in 
regard  to  the  jndf^nients  of  courts  of  sister  States.  Although 
some  have  held,  even  in  regard  to  such  a  judgment,  that  if  the 
record  contains  recitals  showing  jurisdiction,  they  cannot  be  con- 
tradicted. (Field  V.  Gibbs,  i  Peters,  C.  C.  R.,  155;  Roberts  v. 
Caldwell,  5  Dana,  512;  Ezver  v.  Coffin,  i  Gushing,  23;  i  R.  1.,  jt,; 
Shelton  v.  TifFm,  6  How.  [U.  S.],  186.) 

After  considerable  research  I  have  been  unable  to  find  a 
single  authoritative  adjudication,  in  this  or  any  other  State, 
deciding  that  in  the  case  of  a  domestic  judgment  of  a  court  of 
general  jurisdiction,  want  of  jurisdiction  over  the  person  may  be 
shown  by  extrinsic  evidence,  while  there  are  a  great  number  of 
adjudications  in  neighboring  States,  holding  that  in  the  case  of 
such  judgments,  parties  and  privies  are  estopped  in  collateral 
actions  to  deny  the  jurisdiction  of  the  court  over  the  person  as 
well  as  the  subject-matter,  unless  it  appear  on  the  face  of  the 
record  that  the  court  had  not  acquired  jurisdiction ;  and  that  in 
such  cases  there  is  a  conclusive  presumption  of  law  that  jurisdic- 
tion was  acquired  by  service  of  process  or  the  appearance  of  the 
party.  The  cases  are  very  numerous,  but  the  citation  of  a  few  of 
them  will  suffice. 

In  Cook  V.  Darling  (18  Pick.,  393),  in  an  action  of  debt  on 
a  domestic  judgment,  the  defendant  pleaded  that,  at  the  time  of 
the  supposed  service  upon  him  of  the  writ  in  the  original  action, 
he  was  not  an  inhabitant  of  the  State  of  Massachusetts;  that  he 
had  no  notice  of  the  action,  and  did  not  appear  therein. 

This  plea  was  held  bad  on  demurrer,  on  the  ground  that  the 
judgment  could  not  be  impeached  colaterally.  In  Granger  v. 
Clarke  (22  Maine,  128),  also  an  action  on  a  judgment,  the  plea 
was  the  same,  with  the  addition  that  the  judgment  had  been 
obtained  by  fraud ;  but  it  was  held  to  constitute  no  defence.  Coit 
V.  Haven  ( 30  Conn.,  190)  was  a  scire  facias  on  a  judgment,  and 
the  defendant  pleaded  that  the  writ  in  the  original  action  was 
never  served  upon  him,  etc. ;  and  the  court  held,  in  an  elaborate 
opinion,  that  a  judgment  of  a  domestic  court  of  general  jurisdic- 
tion could  not  be  attacked  collaterally,  unless  the  want  of  jurisdic- 
tion appeared  upon  the  face  of  the  record,  and  that  jurisdictional 
facts,  such  as  the  service  of  the  writ  and  the  like,  were  con- 
clusively presumed  in  favor  of  such  a  jmlgmcnt,  unless  the  record 
showed  the  contrary,  although  this  rule  did  not  apply  to  foreign 


246  PRIVATE    INTERNATIONAL    LAW. 

judgments,  or  judgments  of  the  courts  of  sister  States,  or  to 
domestic  judgments  of  inferior  courts,  and  that  the  only  remedy 
in  such  a  case  was  by  writ  of  error,  or  appHcation  to  a  court  of 
equity. 

The  same  rule  is  held  in  Penobscot  R.  R.  Co.  v.  Weeks  (52 
Maine,  456;  JVingatc  v.  Hayzvood,  (40  N.  H.,  437;  Clark  v. 
Bryan  (16  Md.,  171)  ;  Callen  v.  Ellison  (13  Ohio  St.  R.,  446)  ; 
Horner  v.  Doe  ( i  Ind.,  131)  ;  Wright  v.  Marsh  (2  Iowa,  94),  and 
Pierce  v.  Griffin  (16  Iowa,  552),  and  in  numerous  other  cases 
which  are  referred  to  in  the  case  of  Hahn  v.  Kelly  (34  Cal., 
391),  which  adopts  the  same  rule  and  contains  a  full  and  instruc- 
tive discussion  of  the  question. 

There  are  many  cases  in  other  States,  and  in  the  courts  of 
the  United  States,  containing  expressions  general  in  their  char- 
acter, which  would  seem  to  sanction  the  doctrine  that  a  want  of 
jurisdiction  over  the  person  or  subject-matter  may  in  all  cases 
be  shown  by  extrinsic  evidence,  and  they  are  sometimes  cited  as 
authorities  to  that  effect.  {Elliott  v.  Pier  sol,  i  Peters,  340;  Hoi- 
lingszuorth  v.  Barbour,  4  Peters,  466;  Mickey  v.  Stewart,  3  How. 
[U.  S.J,  750;  Shriver  v.  Lynn,  2  How.  [U  S.],  43;  Williomson 
V.  Berry,  8  How.,  495;  Same  v.  Ball,  8  How.,  495;  Girvin  v. 
McCoivell,  8  Sm.  &  M..  351;  Enos  v.  Smith,  7  Sm.  &  M.,  85; 
Campbell  v.  Brozvn,  6  How.  [Miss.],  106;  Schafer  v.  Gates,  2  B. 
Monroe,  453;  Wilcox  v.  Jackson,  13  Peters,  498;  Miller  v.  Ewing, 
8  Sm.  &  M.,  421,  and  numerous  other  cases  not  cited.)  But  an 
examination  of  these  cases  discloses  that  they  all  relate  either  to 
judgments  of  inferior  courts,  or  courts  of  limited  jurisdiction,  or 
courts  of  general  jurisdiction  acting  in  the  exercise  of  special 
statutory  powers,  which  proceedings  stand  on  the  same  footing 
with  those  of  courts  of  limited  and  inferior  jurisdiction  (3  N.  Y., 
511)  or  courts  of  sister  States,  or  to  cases  where  the  want  of 
jurisdiction  appeared  on  the  face  of  the  record,  or  to  cases  of 
direct  proceedings  to  reverse  or  set  aside  the  judgment.  I  have 
not  found  one  which  adjudicated  the  point  now  under  consider- 
ation, otherwise  than  those  to  which  I  have  referred.  There  are 
some  cases  which  hold  that  the  want  of  authority  of  an  attorney 
to  appear  mav  be  shown  by  extrinsic  evidence,  although  the  record 
states  that  an  attorney  appeared  for  the  party,  but  those  are 
placed  expresslv  on  the  ground  that  such  evidence  does  not  con- 
tradict the  record.  (Bodurtha  v.  Goodrich,  3  Gray,  508;  Shelton 
V.  Tiffin,  6  How.  fU.  S.'l,  186;  14  How.,  340).  Those  cases  are, 
however,  in  conflict  with  the  decision  of  this  court,  in  Brown  v. 
Nichols  (42  N.  Y.,  26),  and  in  many  other  cases. 


FOREIGN    JUDGMENTS.  247 

The  learned  annotat'^rs  of  Smith's  Leading  Cases,  Hare  & 
Wallace  (i  Sm.  L.  Cases,  vol.  i,  p.  842  [marg.J)  sum  the  matter 
up  by  saying:  "Whatever  the  rule  may  be  wliere  the  record  is 
silent,  it  would  seem  clearly  and  conclusively  established  by  a 
weight  of  authority  too  great  for  opposition,  unless  on  the  ground 
of  local  and  peculiar  law,  that  no  one  can  contradict  that  which  the 
record  actually  avers,  and  that  a  recital  of  notice  or  appearance,  or 
a  return  of  service  by  the  sheriff  in  the  record  of  a  domestic 
court  of  general  jurisdiction,  is  absolutely  conclusive  and  cannot 
be  disproved  by  extrinsic  evidence." 

It  is  quite  remarkable,  however,  that  notwithstanding  tiie  for- 
midable array  of  authority  in  its  favor,  the  courts  of  this  State 
have  never  sustained  this  doctrine  by  any  adjudication,  but  on  the 
contrary  the  great  weight  of  judicial  opinion,  and  the  views  of 
some  of  our  most  distinguished  jurists,  are  directly  opposed  to  it. 

As  has  been  already  stated,  cur  courts  have  settled  by  adjudi- 
cation in  regard  to  judgments  of  sister  States,  that  the  question 
of  jurisdiction  may  be  inquired  into,  and  a  want  of  jurisdiction 
over  the  person  shown  by  evidence,  and  have  further  decided 
(in  opposition  to  the  holding  of  courts  of  some  of  the  other 
States)  that  this  may  be  done,  even  if  it  involves  the  contradiction 
of  a  recital  in  the  judgment  record.  In  stating  the  reasons  for 
this  conclusion,  our  courts  have  founded  it  on  general  principles, 
quite  as  applicable  to  domestic  judgments  as  to  others,  and  save 
in  one  case  {Kerr  v.  Kerr,  41  N.  Y.,  272),  have  in  their  opinions 
made  no  discrimination  between  them.  {Borden  v.  I'ltch,  15 
Johns.,  121  ;  Starhnck  v.  Murray,  5  Wend.,  148;  Noyes  v.  Butler, 
6  Barb.,  613,  and  cases  cited.) 

When  we  come  to  consider  the  effect  of  these  authorities,  it 
is  difficult  to  find  any  solid  ground  upon  which  to  rest  a  distinc- 
tion between  domestic  judgments  nnd  judgments  of  sister  States 
in  regard  to  this  question,  for  under  the  provisions  of  the  Con- 
stitution of  the  United  States,  which  requires  that  full  faith  and 
credit  shall  be  given  in  each  State  to  the  public  acts,  records  and 
judicial  proceedings  of  every  other  State,  it  is  now  well  settled 
that  when  a  judgment  of  a  court  of  a  sister  State  is  duly  proved 
in  a  court  of  this  State,  it  is  entitled  here  to  all  the  effect  to  which 
it  is  entitled  in  the  courts  of  the  State  where  rendered.  If  con- 
clusive there  it  is  equally  conclusive  in  all  the  States  of  the 
Union ;  and  whatever  pleas  would  be  good  to  a  suit  therein  in  the 
State  where  rendered,  and  none  others  can  be  pleaded  in  any 
court  in  the  United  States.      {Hampton  v.  MeConnel,  3  \\'heaton, 


248  PRIVATE    INTERNATIONAL    LAW. 

234;  Story  Com.  on  Cons.,  §   183;  Mills  v.  Duryee,  7  Cranch, 

481.) 

In  holding,  therefore,  that  a  defense  that  the  party  was  not 
served  and  did  not  appear,  although  the  record  stated  that  he  did, 
was  good,  our  courts  must  have  held  that  such  is  the  law  of  this 
State  and  ihe  common  law,  and  consequently,  that  in  the  absence 
of  proof  of  any  special  law  to  the  contrary  in  the  State  where  the 
judgment  was  rendered,  it  must  be  presumed  to  be  also  the  law  of 
that  State.  The  judgments  of  our  courts  can  stand  on  no  other 
logical  basis.  The  distinction  which  is  made  in  almost  ail  the 
other  States  of  the  Union  between  the  effect  of  domestic  judg- 
ments and  judgments  of  sister  States,  in  regard  to  the  con- 
clusiveness of  the  presumption  of  jurisdiction  over  the  person,  is 
sought  to  be  explained,  by  saying  that  in  regard  to  domestic 
judgments  the  party  aggrieved  can  obtain  relief  by  application  to 
the  court  in  which  the  judgment  was  rendered,  or  by  writ  of 
error,  whereas  in  the  case  of  a  judgment  rendered  against  him 
in  another  State  he  would  be  obliged  to  go  into  a  foreign  juris- 
diction for  redress,  which  would  be  a  manifestly  inadequate  pro- 
tection ;  and  therefore  the  Constitution  may  be  construed  so  as  to 
apply  only  where  the  persons  affected  by  the  judgment  were 
within  the  operation  of  the  proceeding.  This  explanaticn,  how- 
ever, does  not  remove  the  difficulty  in  making  the  distinction,  for 
if  there  is  a  conclusive  presumption  that  there  was  jurisdiction, 
that  presumption  must  exist  in  one  case  as  well  as  in  the  ether. 
The  question  whether  or  not  the  party  is  estopped,  cannot  be 
made  to  depend  upon  the  greater  inconvenience  of  getting  rid  of 
the  estoppel  in  one  case  than  in  another. 

But  aside  from  this  observation  as  to  the  effect  of  the 
authorities,  an  examination  of  them  shows  that  our  courts  did  in 
fact  proceed  upon  a  ground  common  to  both  classes  of  judgments. 
The  reasons  are  fully  stated  "in  the  case  of  Starbuck  v.  Murray 
(5  Wend.,  148).  In  that  case,  which  was  an  action  upon  a  Mass- 
achusetts judgment,  the  defendant  pleaded  that  no  process  was 
served  on  him  in  the  suit  in  which  the  judgment  sued  on  was 
rendered,  and  that  he  never  appeared  therein  in  person  or  by 
attorney,  and  this  plea  was  held  good,  notwithstanding  that  the 
record  of  the  judgment  stated  that  the  defendant  appeared  to  the 
suit.  Marcy,  J.,  in  delivering  the  opinion  of  the  court,  and  refer- 
ring to  the  argument  that  the  defendant  was  estopped  from  assert- 
ing anything  against  the  allegation  of  his  appearance  contained 
in  the   record,   says:     "It  appears  to  me   that  this   proposition 


FOREIGN    JUDGMENTS.  249 

assumes  the  very  fact  to  be  established,  which  is  the  only  question 
in  issue.  For  what  purpose  does  rhe  defendant  question  the 
jurisdiction  of  the  court?  Solely  to  show  that  its  proceedings 
and  judgments  are  void,  and  therefore  the  supposed  record  is  not 
in  truth  a  record.  If  the  defendant  had  not  proper  notice  of, 
and  did  not  appear  to,  the  original  action,  all  the  State  courts,  with 
one  exception,  agree  in  opinion  that  the  paper  introduced,  as  to 
him,  is  no  record.  But  if  he  cannot  show  even  against  the  pre- 
tended record  that  fact,  on  the  alleged  ground  of  the  uncontroll- 
able verity  of  the  record,  he  is  deprived  of  his  defence  by  a 
process  of  reasoning  that  is  to  my  mind  little  less  than  sophistry. 
The  plaintiff  in  effect  declares  to  the  defendant — the  paper  de- 
clared on,  is  a  record,  because  it  says  you  appeared ;  and  you 
appeared,  because  the  paper  is  a  record.  This  is  reasoning  in  a 
circle.  The  appearance  makes  the  record  uncontrollable  verity, 
and  the  record  makes  the  appearance  an  unimpeachable  fact." 
And  again,  at  p.  i6o,  he  says:  "To  say  that  the  defendant  may 
show  the  supposed  record  to  be  a  nullity,  by  showing  a  want  of 
jurisdiction  in  tJie  court  which  made  it,  and  at  the  same  time  to 
estop  him  from  doing  so  because  the  court  has  inserted  in  the 
record  an  allegation  which  he  offers  to  prove  untrue,  does  not 
seem  to  me  to  be  very  consistent." 

This  is  but  an  amplification  of  what  is  sometimes  more  brielly 
expressed  in  the  books,  that  where  the  defence  goes  to  defeat 
the  record,  there  is  no  estoppel.  That  the  reasoning  of  M.\rcy,  J., 
is  applicable  to  domestic  judgm.ents,  is  also  the  opinion  of  the 
learned  annotators  to  Phillip's  Evidence.  (Cowen  and  Hill's 
notes  [ist  Ed.],  p.  8oi.  note  551.)  Referring  to  the  opinion  of 
M.VRCY,  J-,  before  cited,  they  say:  "Tlie  same  may  be  said  re- 
specting anv  judgment,  sentence  or  decree.  A  want  of  jurisdic- 
tion in  the  court  pronouncing  it  may  always  be  set  up  when  it  is 
sought  to  be  enforced,  or  wdien  any  benefit  ds  claimed  under  it; 
and  .he  principle  which  ordinarily  forbids  the  impeachment  or 
contradiction  of  a  record  has  no  sort  of  application  to  the  case." 
The  dicta  of  our  judges  are  all  to  the  same  effect,  although  the 
precise  case  does  not  seem  to  have  arisen.  In  Bigclozv  v.  Stcar)is 
(19  Johns.,  41).  Spencer,  Ch.  J.,  laid  down  the  broad  rule  that 
if  a  court,  whether  of  limited  jurisdiction  or  not,  undertakes  to 
hold  cognizance  of  a  cause  without  having  gained  jurisdiction  of 
the  person  l\v  having  him  before  them  in  the  manner  requirea  by 
law,  the  proceedings  are  void.  In  Latham  v.  Edgcrton  (9  Cow., 
^zy),  Sutherland^  J.,  in  regard  to  a  judgment  of  a  court  of 


250  PRIVATF    INTERNATIONAL    LAW. 

common  pleas,  says :    "The  principle  that  a  record  cannot  be  im- 
peached by  pleading,  is  not  applicable  to  a  case  like  this.     The 
want  of  jurisdiction  is  a  matter  that  may  always  be  set  up  against 
a  judgment  when  sought  to  be  enforced  or  where  any  benefit  is 
claimed  under  it."     Citing  Mills  v.  Martin   (19  Johns.,  33),  he 
also  says  (p.  229)  :     "The  plaintiff  below  might  have  applied  to 
the  court  to  set  aside  their  proceedings,  but  he  was  not  bound 
to  do  so.     He  had  a  right  to  lie  by  until  the  judgment  was  set  up' 
against  him.  and  then  to  show  that  the  proceedings  were  void  for 
want  of  jurisdiction.     In  Davis  v.  Packa^rd  (6  Wend.,  327,  332),, 
in  the  Court  of  Errors,  the  Chancellor,   speakmg  of  domestic 
judgments,  says:     "Tf  the  jurisdiction  of  the  court  is  general  or 
unlimited  both  as  to  parties  and  subject-matter,  it  will  be  pre- 
sumed to  have  had  jurisdiction  of  the  cause  unless   it  appears, 
affirmatively  from  the  record,  or  by  the  shozving  of  the  party 
denying  the  jurisdiction  of  the  court,  that  some  special  circum- 
stances existed  to  oust  the  court  of  its  jurisdiction  in  that  par- 
ticular case."    In  Bloom  v.  Burdick  (i  Hill,  130),  Bronson,  J.,, 
says  :    "The  distinction  between  superior  and  inferior  courts,  is  not 
of   much    importance   in    this   particular   case,    for    whenever    it 
apjiears  that  there  was  a  want  of  jurisdiction,  the  judgment  will 
be  void  in  whatever  court  it  was  rendered  ;"  and  in  People  v. 
Cassels   (5  Hill,   164,   168),  the  same  learned  judge  makes  the 
remark,  that  no  court  or  ofificer  can  acquire  jurisdiction  by  the 
mere  assertion  of  it,  or  by  falsely  alleging  the  existence  of  facts 
upon  which  jurisdiction  depends.     In  Harrington  v.  The  People 
(6  Barb.,  607,  610),   Patge,  J.,  expresses  the  opinion   that  the 
jurisdiction  of  a  court,  whether  of  general  or  limited  jurisdiction,, 
may  be  inquired  into,  although  the  record  of  the  judgment  states 
facts  giving  it  jurisdiction.     He  repeats  the  same  view  in  Noycs' 
v.    Butler  (6    FJarb.,    613,    617),    and    in    Hard  v.  Shipuian    (6 
Barb.,  621,  623,  624),  where  he  says  of  superior  as  well  as  inferior- 
courts,  that  the  record  is  never  conclusive  as  to  the  recital  of  a 
jurisdictional  fact,  and  the  defendant  is  always  at  liberty  to  show 
a  want  of  jurisdiction,  although  the  record  avers  the  contrar}'.. 
If  the  court  had  no  jurisdiction,  it  had  no  power  to  make  a  record, 
and  the  supposed  record  is  not  in  truth  a  record.     (Citing  Star- 
buck  v.  Murray,  5  Wend.,  158.)     The  language  of  Gridley,  J.„ 
in  Wright  v.  Douglass  (lO  Barb.,  97,  111),  is  still  more  in  point. 
He  observes :    "It  is  denied  by  counsel  for  the  plaintiff,  that  want 
of  jurisdiction  can  be  shown  collaterally  to  defeat  a  judgment  of 
a  court  of  general  jurisdiction.     The  true  rule,  however,  is  that 


FOREIGN    JUDGMENTS.  251 

laid  down  in  the  opinion  just  cited  (op.  of  BkONSON,  J.,  in  Bloom 
V.  Burdick,  i  Hill,  138  to  143).  that  in  a  conrt  of  general  juris- 
diction, it  is  to  be  presumed  that  the  court  has  jurisdiction  till 
the  contrary  appears,  but  the  want  of  jurisdiction  may  always  be 
shown  ^3;  evidence,  except  in  one  solitary  case,"  viz:  "When 
jurisdiction  depends  on  a  fact  that  is  litigated  in  a  suit,  and  is 
adjudged  in  favor  of  the  party  who  avers  jurisdiction,  then  the 
question  of  jurisdiction  is  judicially  decided,  and  the  judgment 
lecoijd  is  conclusive  evidence  of  jurisdiction  until  set  aside  or 
reversed  by  a  direct  proceeding." 

The  General  Term,  in  that  case,  held  that  a  judgment  of  the 
Supreme  Court  was  void  for  want  of  service  of  an  attachment, 
notwithstanding  that  the  record  averred  that  the  attachment  had 
been  duly  served  and  returned,  according  to  law.  Ihe  judgment 
in  the  case  cited  was  reversed  (7  N.  Y.,  564),  but  not  upon  the 
point  referred  to  here.  It  cannot,  however,  be  held  to  be  an  adju- 
dication upon  that  point,  because  the  judgment  was  not  rendered 
in  the  exercise  of  the  general  power?  of  the  court,  but  in  pursu- 
ance of  a  special  statutory  authority. 

In  the  Chemung  Canal  Bank  v.  Judson  (8  N.  Y.,  254),  the 
general  principle  is  recognized,  that  the  jurisdiction  of  any  court 
exercising  authority  over  a  subject  may  be  inquired  into,  and  in 
Adams  v.  The  Saratoga  &  Washington  R.  R.  Co.  (10  N.  Y., 
328,  333).  Grtdley,  J.,  maintains  as  to  the  judgments  of  all 
courts,  that  jurisdiction  may  be  inquired  into,  and  disproved  by 
evidence,  nothwithstanding  recitals  in  the  record,  and  says  that 
such  is  the  doctrine  of  the  courts  of  this  State,  although  it  may  be 
different  in  some  of  the  ether  States,  and  perhaps  also  in  Eng- 
land ;  and  he  says  the  idea  is  not  to  be  tolerated,  that  the  attorney 
could  make  up  a  record  or  decree,  reciting  that  due  notice  was 
given  to  the  defendant  of  a  proceeding,  when  he  never  heard  of 
it,  and  the  decree  held  conclusive  agamst  an  offer  to  show  this 
vital  allegation  false.  That  was  a  case  of  a  special  proceeding, 
and,  therefore,  not  an  authority  on  the  point.  In  Pendleton  v. 
Weed  (17  N.  Y.,  75),  where  a  judgment  of  the  Supreme  Court 
was  sought  to  be  attacked  collaterally,  it  is  said  by  Strong,  J. : 
"It  is  urdonbtedly  true  that  the  want  of  jurisdiction  of  the  person 
is  a  good  defence  in  answer  to  a  judgment  when  set  up  for  any 
puipose,  a^id  that  such  jurisdiction  is  open  for  inquiry;"  and  by 
CoMSTOCK,  J.,  at  p.  /j:  "I  assent  to  the  doctrine  that  where 
there  is  no  suit  or  process,  appearance  or  confession,  no  valid 
judgment  can  be  rendered  in  an\  court ;  that  in  such  a  case  the 


252  PRIVATIP'    INTERNATIONAL    LAW. 

recital  in  the  record  of  jurisdictional  facts  is  not  conclusive." 
(Citing  Starhuch  v.  Murray.)  "I  think  it  is  always  the  right  of 
a  party  against  whom  a  record  is  set  up,  to  show  that  no  juris- 
diction of  his  person  was  acquired,  and  consequently  that  there 
Avas  no  right  or  authority  to  make  up  the  record  against  him." 
Selden  and  Pratt,  JJ.,  concurred  in  these  views,  but  the  case 
was  disposed  of  on  a  different  point. 

In  Porter  v.  Bronsnn  (29  How.  Pr.,  292..  and  S.  C,  19,  Abb. 
Pr.,  236) ,  the  Court  of  Common  Pleas  of  the  City  of  New  York 
held,  at  G':neral  Term,  that  assuming  the  Marine  Court  to  be 
a  court  of  record,  a  defendant  in  an  action  on  a  judgment  of  that 
court  might  set  up  that  he  w^as  not  served  with  process  and  did 
not  appear,  notwithstanding  recitals  in  the  record  showing  juris- 
diction;  and  in  Bolton  v.  Jacks  (6  Rob.,  198),  Jones,  J.,  says  that 
it  is  now  conceded,  at  least  in  this  State,  that  want  of  jurisdiction 
Avill  render  void  the  judgment  of  an>  court,  whether  it  be  of 
superior  or  inferior,  of  general,  limited  or  local  jurisdiction,  or  of 
record  or  not,  and  that  the  bare  recital  of  jurisdictional  facts  in 
the  record  of  a  judgment  of  any  court,  whether  superior  or 
inferior,  of  general  or  limited  jurisdiction,  is  not  conclusive,  but 
only  prima  facie  evidence  of  the  truth  of  the  fact  recited,  and  the 
partv  against  whom  a  judgment  is  offered,  is  not  by  the  bare 
fact  of  such  recitals  estopped  from  showing  by  affirmative  proof, 
that  they  were  untrue  and  thus  rendering  the  judgment  void 
for  want  of  jurisdiction.  He  cites  in  support  of  this  opinion,  sev- 
eral of  the  cases  which  I  have  referred  to,  and  Dohson  v.  Pearce 
(12  N.  Y.,  164),  and  Hatcher  v.  Rochelcau  (18  N.  Y.,  92). 

It  thus  appears  that  the  current  of  judicial  opinion  in  this 
State  is  very  strong  and  uniform  in  favor  of  the  proposition  stated 
by  Jones  J.,  in  6  Rob.,  198,  and  if  adopted  here,  is  decisive  of 
the  present  case.  It  has  not  as  yet,  however,  been  directly  adju- 
dicated, and  if  sustained,  it  must  rest  upon  the  local  law  of  this 
State,  ::s  it  finds  no  support  in  adjudications  elsewhere.  There 
are  reasons,  however,  founded  upon  our  system  of  practice,  which 
would  warrant  us  in  so  holding.  The  powers  of  a  court  of  equity 
being  vested  in  our  courts  of  law%  and  equitable  defences  being 
allowable,  there  is  no  reason  why,  to  an  action  upon  a  judgment, 
the  defendant  should  not  be  permitted  to  set  up,  by  way  of 
defence,  any  matter  which  would  be  ground  or  relief  in  equity 
against  the  judgment;  and  it  is  conceded  in  those  States  where 
the  record  is  held  conclusive,  that  when  the  judgment  has  been 
obtained  by  fraud,  or  v.ithout  bringing  the  defendant  into  court, 


FOREIGN    JUDGMENTS.  253 

and  the  want  of  jurisdiction  does  not  appear  upon  the  face  of  the 
record,  rehef  may  be  obtained  in  equity. 

The  technical  (Hfficulty  arisinj^  from  the  conchisiveness  of  the 
record  is  thus  ol)viate(l.  In  the  present  case,  tlie  judgment  is  set 
up  by  the  defendants  as  a  bar  to  tlie  plaintiff's  action.  But  't 
must  be  bcrne  in  mind,  that  this  is  an  equitable  action,  being  for 
the  foreclosure  of  a  mortgage.  The  defendants  set  up  the  fore- 
closure in  the  McFarquahar  case  as  a  bar,  but  being  in  a  court 
of  equity,  tlie  plaintiff  had  a  right  to  set  up  any  matter  showing 
that  the  defendants  ought  not  in  equity  to  avail  themselves  of 
that  judgment.  They  offered  to  show  that  it  was  entered  ex  parte 
on  forged  papers.  It  does  not  appear  that  the  plaintiff  ever  had 
any  knowledge  cf  it,  and  it  is  not  pretended  that  he  was  legally 
summoned.  Such  a  judgment  would  never  be  upheld  in  equity, 
even  in  favor  of  one  ignorant  of  the  fraud  and  claiming  bona  fide 
under  it.  He  stands  m  no  better  position  than  any  other  party 
claim.ing  bona  fide  under  a  forged  instrument. 

The  case  is  analogous  in  principle  to  that  of  the  Bridgeport 
Savings  Bank  v.  Eldredge  (28  Conn.,  557).  That  was  a  biil  filed 
by  a  second  mortgagee  to  redeem  mortgaged  premises  from  a  first 
mortgagee.  The  first  mortgagee  had  obtained  a  decree  of  fore- 
closure against  the  second  mortgagee,  and  the  time  limited  for 
redemption  had  expired.  The  record  of  the  decree  found  the  fact 
that  legal  service  of  the  bill  in  the  first  suit  had  been  made  on  the 
second  mortgagee,  but  in  fact  none  had  been  made,  and  he  had 
no  actual  knowledge  of  the  pendencv  of  the  suit  until  after  the 
time  limited  for  redemption  had  expired ;  and  he  would  have 
redeemed  if  he  had  known  of  the  decree. 

It  was  held,  i.  That  the  decree  was  not  in  any  proper  sense 
a  bar  to  the  present  suit,  as  a  judgment  at  law  would  be  a  bar  to  a 
suit  at  law  ;  but  that,  without  impugning  the  decree,  the  court 
could,  for  equitaljlc  reasons  shown,  allow  a  further  time  for 
.edemption. 

2.  That,  therefore,  the  question  wnether  the  plaintiff  could 
contradict  the  record  by  showing  that  no  service  of  the  bill  was, 
in  fact,  made  upon  him.  did  not  present  itself  as  a  technical  one, 
to  be  determined  by  the  rules  with  regard  to  the  verity  of  judicial 
records,  but  only  in  its  relation  to  the  plaintiff's  rights  to  equit- 
able relief,  and  therefore  that  evidence  of  want  of  notice  was 
admissible. 

The  bill  to  redeem  was  not  framed  to  open  the  former  decree, 
and  contained  no  allegations  adapted  to  or  praying  for  such  relief. 


'254  PRIVATE    INTERNATIONAL    LAW. 

but  was  in  the  ordinary  form  of  a  bill  for  redemption,  taking  no 
notice  of  the  previous  decree.  The  decree  was  set  up  in  the  answei , 
and  it  was  averred  tliat  it  was  rendered  on  legal  notice  to  the 
])laintifif.  The  court,  however,  held  th.at  this  defence  might  be 
rebutted  by  evidence  of  facts  which  should  preclude  defendants 
from  taking  advantage  of  a  decree  of  which  they  could  not  con- 
.scientiously  avail  themselves. 

Under  the  system  of  practice  in  this  State,  no  reply  to  an 
answer  setting  up  new  matter  is  required,  but  the  plaintiff  is 
allowed  to  rebut  it  by  evidence.  Neither  is  it  necessary  to  antici- 
pate a  defence  arising  upon  a  deed  or  record  by  inserting  matter 
in  the  complaint  in  avoidance  of  it.  The  defence  may  never  be 
set  up,  and  the  plaintiff  is  not  bound  to  suppose  that  it  will  be. 
The  state  of  the  pleadings,  therefore,  presents  no  difficulty.  The 
■only  question  which  might  be  raised  is,  that  McFarquahar,  in 
whose  name  the  decree  was  obtained,  should  be  before  the  court, 
but  no  such  objection  was  made  at  the  trial,  and  if  it  had  been, 
I  do  not  see  that  he  has  any  interest  in  the  question.  All  the 
parties  claiming  imder  the  decree  and  sale  are  parties  to  this 
.action,  and  I  see  no  reason  why  the  validity  of  the  McFarquahar 
foreclosure  cannot  be  tried  herein  as  well  as  upon  a  motion  or  in 
.a  separate  suit  to  set  aside  the  decree. 

The  judgment  should  be  reversed,  and  a  newrtnal  ordered 
with  costs  to  abide  the  event. 

All  concur ;  Andrews,  J.,  in  result. 

Judgment  reversed.^" 


^*See  Grover  and  Baker  Sewing  Machine  Co.  v.  Radcliffe,  137  U.  S. 
287;  Price  V.  Schacffcr,  161  Pa.  St.  530;  Thompson  v.  Whitman,  18  Wall. 
457;  Keyscr  v.  Lozuell,  117  Fed.  Rep.  400. 


SITUS  OF  A  DEBT. 
CHICAGO  R.  I.  RY.  v.  STURM,  I899. 

[174  U.  S.  710.] 

The  defendant  in  error  brought  an  auction  against  the  plain- 
tiff in  error  in  a  justices'  court  of  Belleville,  Republic  County, 
Kansas,  for  the  sum  of  $140.  for  wages  due.  Judgment  was 
rendered  for  him  in  the  sum  of  $140  and  interest  and  costs. 

The  plaintiff  in  error  appealed  from  the  judgment  to  tlie 
district  court  of  the  county,  to  which  court  all  the  papers  were 
transmitted,  and  the  case  docketed  for  trial. 


SITUS    OF    A    DEBT.  255 

On  the  lolh  of  October,  1894,  tlie  case  was  called  for  trial, 
when  plaintiff  in  error  filed  a  motion  for  continuance,  supported 
by  an  aftidavit  affirniint;  that  on  the  13th  day  ot  December,  1893, 
in  the  cuinity  of  Pottawattomie  and  State  of  Iowa,  one  A.  H. 
Willard  commenced  an  action  against  E.  H.  Sturm  in  justices' 
court  before  Gride  Vien,  a  justice  of  the  peace  for  said  county, 
to  recover  the  sum  of  $78.63,  with  interest  at  the  rate  of  ten  per 
cent  per  annum,  and  at  the  same  time  sued  out  a  writ  of  attach- 
ment and  garnishment,  and  duly  garnisheed  the  plaintiff  m  error, 
and  at  that  time  i)laintiff  in  error  was  indebted  to  defendant 
in  error  m  the  sum  of  $77.17  for  wages,  being  the  same  wages 
sought  to  be  recovered  m  this  action ; 

That  plaintiff  in  error  filed  its  answer,  admitting  such  indebt- 
edness ; 

That  at  the  time  of  the  commencement  of  said  action  in 
Povtawattcmie  County  the  defendant  was  a  non-resident  of  the 
State  of  Iowa,  and  that  service  upon  him  was  duly  made  by  pub- 
lication, and  that  afterwards  judgment  was  rendered  against  him 
and  plaintiff  in  error  as  garnishee  for  the  sum  of  $76.16,  and  costs 
of  suit  amounting  to  $19,  and  from  such  judgment  appealed  to  the 
district  court  of  said  county,  where  said  action  was  then  pending 
undetermined ; 

That  the  moneys  sought  to  be  recovered  in  this  action  are 
the  same  moneys  sought  to  be  recovered  in  the  garnishment  pro- 
ceedings, and  that  under  the  laws  of  Iowa  its  courts  had  juris- 
diction thereof,  and  that  the  said  moneys  were  not  at  the  time  of 
the  garnishment  exempt  from  attachment,  execution  or  garnish- 
ment ;  that  the  justice  of  the  peace  at  all  of  the  times  of  the  pro- 
ceedmgs  was  a  duly  qualified  and  acting  justice,  and  that  all  the 
proceedings  were  connnenced  prior  to  the  commencement  of  the 
present  action,  and  that  if  the  case  be  continued  until  the  next 
term  of  the  court  the  action  in  Iowa  will  be  determined  and  the 
rights  of  plaintiff  in  error  protected. 

The  motion  was  denied,  and  the  plaintiff  in  error  pleaded 
in  answer  the  same  matters  alleged  in  the  affidavit  for  continu- 
ance, atid  attached  to  the  answer  a  certified  copy  of  the  proceed- 
ings in  the  Iowa  courts.  It  also  alleged  that  it  was  a  corporation 
duly  organized  under  the  laws  of  the  States  of  Illinois  and  Iowa, 
doing  business  in  the  State  of  Kansas. 

The  defendant  in  error  replied  to  the  answer,  and  alleged 
that  the  amount  due  from  plaintiff  in  error  was  for  wages  due  for 
services  rendered   within   three  months   next   prior  to  the  com- 


256  PRIVATE    INTERNATIONAL    LAW. 

mencement  of  the  action  ;  that  he  was  a  resident,  head  of  a  family, 
and  that  the  wages  were  exempt  under  the  laws  of  Kansas,  and 
not  subject  to  garnishment  proceedings;  that  plaintiff  in  error 
knew  these  facts,  and  that  the  Iowa  court  had  no  jurisdiction 
of  his  property  or  person. 

Evidence  was  introduced  in  support  of  the  issues,  including 
certain  sections  of  the  laws  of  Iowa  relating  to  service  by  publi- 
cation, and  to  attachment  and  garnishment,  and  judgment  wa.^ 
rendered  for  the  defendant  in  error  in  the  amount  sued  for. 

A  new  trial  was  moved,  on  the  ground,  among  others,  that 
the  "decision  is  contrary  to  and  in  conflict  with  section  i,  article 
IV,  of  the  Constitution  of  the  United  States." 

The  motion  was  denied. 

On  error  to  the  Court  of  Appeals,  and  from  thence  to  the 
Supreme  Court,  the  judgment  was  affirmed,  and  the  case  was 
then  brought  here. 

The  defendant  ii?  error  was  notified  of  the  suit  against  him 
in  Iowa  and  of  the  proceedings  in  garnishment  in  time  to  have 
protected  his  rights. 

The  errors  assigned  present  in  various  ways  the  contention 
that  the  Supreme  Court  of  Kansas  refused  to  give  full  faith  and 
credit  to  the  records  and  judicial  proceedings  of  the  courts  of  the 
State  of  Iowa,  in  violation  of  section  i,  article  IV.  of  the  Con- 
stitution of  the  United  States,  and  of  the  act  of  Congress  entitled 
"An  act  to  prescribe  the  mode  in  which  the  public  acts,  records 
and  judicial  proceedings  in  each  State  shall  be  authenticated  so 
as  to  take  effect  m  every  other  State,"  approved  May  2^,  1790. 

No  rppearance  for  defendant  in  error. 

Mr.  Justice  McKenna,  after  making  the  foregoing  state- 
ment, delivered  the  opinion  of  the  court. 

How  proceedings  in  garnishment  may  be  availed  of  in  de- 
fence— whether  in  abatement  or  bar  of  the  suit  on  the  debt  at- 
tached or  for  a  continuance  of  it  or  suspension  of  execution — the 
practice  of  the  States  of  the  Union  is  not  uniform.  But  it  is  obvi- 
ous and  necessary  justice  that  such  proceedings  should  be  allowed 
as  a  defence  in  some  way. 

In  the  pending  suit  plaintiff  in  error  moved  for  a  continuance, 
and  not  securing  it  pleaded  the  proceedings  in  garnishment  in 
answer.  Judgment,  however,  was  rendered  against  it,  and  sus- 
tained by  the  Supreme  Court,  on  the  authority  of  Missouri  Pacific 


SITUS    OF    A    DEBT.  257 

Railzvay  Co.  v.  Sharitt,  43  Kansas,  375,  and  "for  the  reasons 
stated  by  Mr.  Justice  Valentine  in  that  case." 

The  facts  of  that  case  were  as  follows:  The  Missouri  Pacific 
Railway  Company  was  indebted  to  Sharitt  for  services  performed 
in  Kansas.  Sharitt  was  indebted  to  one  J.  P.  Stewart,  a  resident 
of  Missouri.  Stewart  sued  him  in  Missouri,  and  attached  his 
wages  in  the  hands  of  the  railway  company,  and  the  latter 
answered  in  the  suit  in  accordance  with  the  order  of  garnishment 
on  the  28Lh  of  July,  1887,  admitting  indebtedness,  and  on  the 
29th  of  September  was  ordered  to  pay  its  amount  into  court. 
On  the  27th  of  July  Sharitt  brought  an  action  in  Kansas  ag?inst 
the  railway  company  to  recover  for  his  services,  and  the  company 
in  defence  pleaded  the  garnishment  and  order  of  the  Missouri 
court.  Tlie  amount  due  Sharitt  having  been  for  wages,  was 
exempt  from  attachment  in  Kansas.  It  was  held  that  the  garnish- 
ment was  not  a  defence.  The  facts  were  similar  therefore  to  tho.^.e 
of  the  case  at  bar. 

The  ground  of  the  opinion  of  Mr.  Justice  Valentme  was 
that  the  Missouri  court  had  no  jurisdiction  because  the  situs  of 
the  debt  v  as  in  Kansas.  In  other  words,  and  to  quote  the  lan- 
guage of  the  learned  justice,  "the  situs  of  a  debt  is  either  with  the 
owner  thereof,  or  at  his  domicil ;  or  where  the  debt  is  to  be  paid ; 
and  it  cannot  be  subjected  to  a  proceeding  in  garnishment  any- 
where else.  .  .  .  It  IS  not  the  debtor  who  can  carry  or  trans- 
fer or  transport  the  property  in  a  debt  from  one  State  or  juris- 
diction into  another.  The  situs  of  the  property  in  a  debt  can  be 
changed  onlv  by  the  change  of  location  of  the  creditor  who  is 
the  own;r  thereof,  or  with  his  consent." 

The  primary  proposition  is  that  the  situs  of  a  debt  is  at  the 
domicil  of  a  creditor,  or,  to  state  it  negatively,  it  is  not  at  the 
domicil  of  the  debtor. 

The  proposition  is  supported  by  some  cases ;  it  is  opposed 
by  others.  Its  error  proceeds,  as  we  conceive,  from  confounding 
debt  and  credit,  rights  and  remedies.  The  right  of  a  creditor  and 
the  obligation  of  a  debtor  are  correlative  but  diflferent  things,  and 
the  law  in  adapting  its  remedies  for  or  against  either  must  regard 
that  difference.  Of  this  there  are  many  illustrations,  and  a  proper 
and  accurate  attention  to  it  avoids  misunderstanding.  This  court 
said  by  Mr.  Justice  Gray  in  Wyman  v.  Halstead,  109  U.  S.  654, 
656:  "The  general  rule  of  law  is  well  settled,  that  for  the  purpose 
of  founding  administration  all  simple  contract  debts  are  assets 
at  the  domicil  of  the  debtor."    And  this  is  not  because  of  defective 

17 


258  PRIVATE    INTERNATIONAL    LAW. 

title  in  the  creditor  or  in  his  administrator,  but  because  the  policy 
of  the  State  of  the  debtor  requn-es  it  to  protect  home  creditors. 
Wilkins  V.  Ellctf,  9  Wall.  740;  108  U.  S.  256.  Debts  cannot  be 
assets  at  the  domicil  of  the  debtor  if  their  locality  is  fixed  at  the 
domicil  of  the  creditor,  and  if  the  policy  of  the  State  of  the  debtor 
can  protect  home  creditors  through  administration  proceedings, 
the  same  policy  can  protect  home  creditors  through  attachment 
proceedings. 

For  illustrations  in  matters  of  taxation,  see  Kirtland  v. 
Hotchkiss,  TOO  U.  S.  491  ;  Pullman's  Car  Co.  v.  Pennsylvania, 
141  U.  S.'i8;  Savings  and  Loan  Society  v.  Multnomah  County, 
169  U.  S.  421. 

Our  attachment  laws  had  their  origin  in  the  custom  of  Lon- 
don. Drake,  §  i.  Under  it  a  debt  was  regarded  as  being  wheie 
the  debtor  was,  and  questions  of  jurisdiction  were  settled  on  that 
regard.  In  Andrews  v.  Clerke,  i  Carth.  25,  Lord  Chief  Justice 
Holt  summarily  decided  such  a  question,  and  stated  the  practice 
under  tl>e  custom  of  London.  The  report  of  the  case  is  brief,  and 
is  as  follows : 

"Andrews  levied  a  plaint  in  the  Sheriff's  Court  in  London 
and,  upon  the  usual  suggestion  that  one  T.  S.  (the  garnishee) 
was  debtor  to  the  defendant,  a  foreign  attachment  was  awarded 
to  attach  that  debt  in  the  hands  of  T.  S.,  which  was  accordingly 
done :  and  then  a  diletur  was  entered,  which  is  in  nature  of  aii 
imparlance  in  that  court. 

'"Afterwards  T.  S.   (the  garnishee)  pleaded  to  the  jurisdic- 
tion setting  forth  that  the  cause  of  debt   due   from  him  to  tlie 
defendant  Sir  Robert  Clerke,  and  the  contract  on  which  it  was 
founded,  did  arise,  and  was  made  at  H.  in  the  county  of  Middle- 
sex, extra  jurisdictionan  curioe ;  and  this  plea  being  overruled, 
it  v/as  now  moved  fin  behalf  of  T.  S..  the  garnishee,)  for  a  pro- 
hib'Hon  to  the  sheriff's  court  aforesaid,  suggesting  the  said  mat- 
ter, (viz.)  that  the  cause  of  action  did  arise  extra  jurisdictionem, 
etc.,  but  the  prohibition  was  denied  because  the  debt  always  fol- 
lov/s  the  person  of  the  debtor,  and  it  is  not  material  where  it  was 
contracted,  especially  as  to  this  purpose  of  foreign  attachments; 
for  it  was  alwavs  the  custom  in  London  to  attach  debts  upon  bills 
of  exchange,  and   goldsmith's  notes,  etc.,  if  the  goldsmith  who 
gave  the  note  on  the  person  to  whom  the  bill  is  directed,  liveth 
within  the  city  without  any  respect  harl  to  the  place  where  the 
debt  was  contracted." 

The  idea  of  locality  of  things  which  may  be  said  to  be  intan- 


SITUS    OF    A    DEBT,  259 

gible  is  somewhat  confusing-,  but  if  it  be  kept  up  the  right  of  the 
crechlor  and  the  obh'gation  of  the  debtor  cannot  have  the  same, 
unless  debior  and  crefhtor  live  in  the  same  place.  But  we  do  not 
think  it  is  necessary  to  resort  to  the  idea  at  all  or  to  give  it  im- 
portant distinction.  The  essential  service  of  foreign  attachment 
laws  is  to  reach  and  arrest  the  payment  of  what  is  clue  and  might 
be  paid  to  a  non-resident  to  the  defeat  of  his  creditors.  To  do 
it  he  must  go  to  the  domicil  of  his  debtor,  and  can  only  do  it  under 
the  laws  and  procedure  in  force  there.  This  is  a  legal  necessity, 
and  considerations  of  situs  arc  somewhat  artificial.  If  not  arti- 
ficial, whatever  of  substance  there  is  must  be  with  the  debior. 
He  and  lie  only  has  something  in  his  liands.  That  something 
is  the  res,  and  gives  character  to  the  action  as  one  in  the  nature 
of  a  proceeding  in  rem.  Mooney  v.  Buford  &  George  Mfg.  Co., 
yz  Fed.  Rep.  32 ;  Conflict  of  Laws,  §  549.  and  notes. 

To  ignor  this  is  to  give  immunity  to  debts  owed  to  non-resi- 
dent creditors  from  attachment  by  their  creditors,  and  to  deny 
necessary  remedies.  A  debt  may  be  as  valuable  as  tangible  things. 
It  is  not  capable  of  manual  seiziu-e,  as  they  are,  but  no  more  than 
they  can  it  be  appropriated  by  attachment  without  process  and  the 
power  to  execute  tlic  process.  A  notice  to  the  debtor  must  be 
given,  aiid  can  only  be  given  and  enforced  where  he  is.  This, 
as  we  have  already  said,  is  a  necessity,  and  it  cannot  be  evaded 
by  the  insistence  upon  fictions  or  refinements  about  situs  or  the 
rights  of  the  creditor.  Of  course,  the  debt  is  the  property  of  the 
creditor,  and  because  it  is,  the  law  seeks  to  subject  it,  as  it  does 
other  propcTty,  to  the  payment  of  his  creditors.  If  it  can  be  done 
in  any  other  way  than  by  process  against  and  jurisdiction  of  his 
debtor,  that  way  does  not  occur  to  us. 

Besides  the  proposition  which  we  have  discussed  there  are 
involved  in  the  decision  of  the  Sheritt  ease  the  propositions  that 
a  debt  may  have  a  situs  where  it  is  payable,  and  that  it  cannot  be 
made  migratory  by  the  debtor.  The  latter  was  probably  expressed 
as  a  consequence  of  the  primary  proposition  and  does  not  require 
separate  consideration.  Besides  there  is  no  fact  of  change  of 
domicil  in  the  case.  The  plaintiff  in  error  was  not  temporarily 
in  Iowa.  It  was  an  Iowa  corporation  and  a  resident  of  the  State. 
and  was  such  at  the  time  the  debt  sued  on  was  contracted,  and 
we  are  not  concerned  to  inquire  whether  the  cases  whicli  decide 
that  a  debtor  temporarily  in  a  State  cannot  be  garnisheed  there, 
are  or  are  not  justified  by  principle. 

The  proposition  that  the  situs  of  a  debt  is  where  it  is  to  be 


260  PRIVATF    INTERNATIONAL    LAW. 

paid,  is  indefinite.  "All  debts  are  payable  everywhere,  unless  there 
be  some  special  limitation  or  provision  in  respect  to  the  payment ; 
the  rule  being  that  debts  as  such  have  no  locus  or  situs,  but  accom- 
pany the  creditor  everywhere,  and  authorize  a  demand  upon  the 
debtor  everywhere."  2  Parsons  on  Contracts,  8tli  edition,  702. 
The  debt  involved  in  the  pending  case  had  no  "special  limitation 
or  provision  in  respect  to  payment."  It  was  payable  generally 
and  could  have  been  sued  on  in  Iowa,  and  therefore  was  attach- 
able in  Iowa.  This  is  the  principle  and  effect  of  the  best  con- 
sidered cases — the  inevitable  effect  from  the  nature  and  transitory 
actions  and  the  purpose  of  foreign  attachment  laws  if  we  would 
enforce  that  purpose.  Enibrce  v.  Hanna,  5  Johns.  loi  ;  Hull  v. 
Blake,  13  Mass.  153;  Blake  v.  Williams,  6  Pick.  286;  Harzvell  v. 
Sharp,  85  Georgia,  124:  Harvey  v.  Great  Northern  Raihvay  Co., 
50  Minnesota,  405:  Mahany  v.  Kephart,  15  W.  Va.  609;  Leiber 
v.  Railroad  Co.,  49  Iowa,  688;  National  Fire  Ins.  Co.  v.  Chambers,. 
53  N.  J.  Eq.  468;  Holland  v.  Mobile  &  Ohio  Railroad,  84  Tenn. 
414;  Pomeroy  v.  Rand,  McNally  &  Co.,  157  Illinois,  176;  Berry 
Bros.  V.  Nelson,  Da7'is  &  Co..  yy  Texas,  191 ;  Weyth  Hardzvare 
Co.  V.  Lang,  127  Missouri,  242;  Hozvland  v.  Chicago,  Rock  Island 
&c.  Railivay,  134  Missouri,  474. 

Mr  Justice  Valentine  also  expressed  the  view  that  "if  a  debt 
is  exempt  from  a  judicial  process  in  the  State  where  it  is  created,, 
the  exemption  will  follow  the  debt  as  an  incident  thereto  into  any 
other  State  or  jurisdiction  into  which  the  debt  m.ay  be  supposed 
to  be  carried."    For  this  he  cites  some  cases. 

It  is  not  clear  whether  the  learned  justice  considered  that  the 
doctrine  affected  the  jurisdiction  of  the  Iowa  courts  or  was  but 
an  incident  of  the  law  of  situs  as  expressed  by  him.  If  the  latter, 
it  has  been  answered  by  what  we  have  already  said.  If  the  former, 
it  cannot  be  sustained.  It  may  have  been  error  for  the  Iowa  court 
to  have  ruled  against  the  doctrine,  but  the  error  did  not  destrov 
jurisdiction.     134  Missouri,  474. 

But  we  do  not  assent  to  the  proposition.  Exemption  laws 
are  not  a  part  of  the  contract ;  they  are  part  of  the  remedy  and 
subject  to  the  law  of  the  forum.  Freeman  on  Executions,  sec. 
209,  and  cases  cited ;  also  Mineral  Point  Railroad  v.  Barron,  83 
Illinois,  365;  Carson  v.  Raikvay  Co.,  88  Tennessee,  646;  Couley 
v.  Chilcote,  25  Ohio  St.  320;  Albrccht  v.  Treitschke,  17  Nebraska, 
205 ;  O'Connor  v.  Walter,  37  Nebraska,  267 ;  Chicago,  Burling- 
ton &c.  Railroad  v.  Moore,  31  Nebraska,  629;  Moore  v.  Chicago, 
Rock  Island  &c.  Railroad,  43  Iowa,  385;  Broadstrecl  v.  Clark, 


SITUS    OF    A    DEBT.  261 

D.  &  C.  M  &  St.  Paul  Railroad,  Garnishee,  65  Iowa,  670;  Stevens 
V.  Brou'>i,  5  West  Virginia,  450.  See  also  Bank  of  United  States 
V.  Donnally,  8  Pet.  361  ;  Wilcox  v.  Hunt,  13  Pet.  378;  Townsend 
V.  Jemison,  9  Hovv.  407;  IVakvortli  v.  Harris,  129  U.  S.  365; 
Peniicld  v.  Chesapeake,  Ohio  &c.  Railroad,  134  U.  S.  351.  As  to 
the  extent  to  which  lex  fori  governs,  see  Conflict  of  Laws,  571, 
et.  scq. 

There  are  cases  for  and  cases  against  tlie  proposition  that  it 
is  the  duty  of  the  garnishee  to  notify  the  defendant,  his  creditor, 
of  the  pendency  of  the  proceedings,  and  also  to  make  the  defence 
of  exemption,  or  he  will  be  precluded  from  claiming  the  proceed- 
ings in  defence  of  an  action  against  himself.  We  need  not  com- 
ment on  the  cases  or  reconcile  them,  as  such  notice  was  given  and 
the  defence  was  made.  The  plaintiff  in  error  did  all  it  could  and 
submitted  only  to  the  demands  of  the  law. 

In  Broadstreet  v.  Clark,  65  Iowa,  670,  the  Supreme  Court  of 
the  State  decided  that  exemption  laws  pertained  to  the  remedy 
and  were  not  a  defense  in  that  State.  This  ruling  is  repeated 
in  IVillard  v.  Sturm,  98  Iowa,  555,  and  applied  to  the  proceedings 
in  garnishment  now  under  review. 

It  follows  from  these  views  that  the  Iowa  court  had  juris- 
diction, and  that  the  Kansas  courts  did  not  give  to  the  proceedings 
in  Iowa  the  faith  and  credit  they  had  there,  and  were  hence 
entitled  to  in  Kansas. 

The  judgment  is  reversed  and  the  ease  remanded  for  further 
proceedings  not  inconsistent  zvith  this  opinion.^'^ 


'"'Louisville  &  Nashville  Ry.  v.  Nash,  118  Ala.  477;  Cooper  v.  Beers, 
143  III.  25. 


CHAPTER  X. 

CAPACITY  OF  PERSONS. 
NICHOLS  &  SHEPARD  v.  MARSHALL,  I899. 

[108  Iowa  518.] 

Deemer,  J. — Defendant  is  a  married  woman  domiciled  in 
this  state.    On  or  about  the  ninth  day  of  July,  1894,  she  signed 
the  note  in  suit,  in  the  state  of  Indiana,  at  which  place  she  was  tem- 
porarily visiting,  as  surety  for  Milton  W.  Gregory.    The  note  was 
made  payable  at  the  Indiana  National  Bank  of  Indianapolis.    The 
laws  of  Indiana  (section  6964,  Burns'  Rev.  St.)  provide  that  "a 
married  woman  shall  not  enter  into  any  contract  of  suretyship, 
whether  as  indorser,  guarantor,  or  in  any  other  manner;  and 
such  contract,  as  to  her,  shall  be  void."    It  is  insisted  on  behalf  of 
appellant  that  as  defendant  was  domiciled  in  this  state  at  the  time 
she  made  the  note,  her  capacity  to  contract  followed  her  into  the 
state  of  Indiana,  and  validated  her  contract  made  in  that  common- 
wealth, and  that  the  right  of  a  married  woman  to  make  a  contract 
relates  to  her  contractual  capacity,  and,  when  given  by  the  law 
of  Ihe  domicile,  follows  the  person.    Our  statutes  permit  the  mak- 
ing of  contracts  of  suretyship  by  married  women,  and,  if  appel- 
lant's postulate  be  correct,  it  follows  that  plaintiff  is  entitled  to 
recover.    The  general  rule  seems  to  be,  however,  that  the  validity, 
nature,  obligation,  and  interpretation  of  contracts  are  to  be  gov- 
erned by  the  lex  loci  contractus  ant  actus.     Savary  v.  Scvary, 
3  Iowa,  272;  Boyd  v.  Ellis,  11   Iowa,  97;  Arnold  v.  Potter,  22 
Iowa,  194;  McDaniel  v.  Raikvay  Co.,  24  Iowa,  417;  Burroivs  v. 
Stryker,  47  Iowa,  477;  Bigclow  v.  Burnhani,  90  Iowa,  300.    The 
rule  is  also  well  settled  that  personal  status  is  to  be  determined  by 
the  lex  domicilii.     Ross  v.   Ross,   129  Mass.  243.     Continental 
jurists  have  generally  maintained  that  personal  laws  of  the  domicil, 
affecting  the  status  and  capacity  of  all  inhabitants  of  a  particular 
class,  bind  them,  wherever  they  may  go,  and  that  the  validity  of 
all  contracts,  in  so  far  as  the  capacity  of  the  parties  to  contract 
is  involved,  depends  upon  the  lex  domicilii.     Thus,  the  Code  of 
Napoleon  enacts,  "The  laws  concerning  the  status  and  capacity 
of  persons  govern  Frenchmen,  even  when  residing  in  a  foreign 


CAPACITY  OF  PERSONS.  263 

country."  See,  also,  Sto-y  Conflict  of  Laws  (8tli  ed.),  sections 
63-66;  Wharton  Conflict  of  Laws  (2(1  ed.),  section  114.  Some 
of  the  EngHsh  cases  have  also  followed  this  rule.  Gnepratte  v. 
Young,  4  be  Gex  &  S.  217,  5  Eng.  Ruling  Cas.  848;  Sottomayor 
V.  Dc  Barros,  47  Law  J.  Frob.  23,  5  Eng.  Ruhng  Cas.  814.  But 
see,  apparently  to  the  contrary,  Biirrozvs  v.  Jeiiiino,  2  Strange, 
7^^l ;  Hens  v.  De  Casa  Riera,  10  Law  J.  Ch.  47.  We  do  not  think 
the  continental  rule  is  applicable  to  our  situation  and  condition. 
A  state  has  the  undoubted  right  to  define  the  capacity  or  inca- 
pacity of  Its  inh.abitants,  be  they  residents  or  temporary  visitors ; 
and  in  this  country,  where  travel  is  so  common,  and  business  has 
so  little  regard  for  state  lines,  it  is  more  just,  as  well  as  more 
convenient,  to  have  regard  to  the  laws  of  the  place  of  contract, 
as  a  uniform  rule  operating  on  all  contracts,  and  which  the  con- 
tracting parties  may  be  presumed  to  have  had  in  contemplation 
when  making  their  contracts,  than  to  require  them,  at  their  peril, 
to  know  the  domicile  of  those  with  whom  they  deal,  and  to  ascer- 
tain the  law  of  that  domicile,  however  remote,  which  in  many 
cases  could  not  be  done  without  such  delay  as  would  greatly 
cripple  the  power  of  contracting  abroad  at  all.  Indeed,  it  is  a 
rule  of  almost  universal  application  that  the  law  of  the  state 
where  the  contract  is  made  and  where  it  is  to  be  performed  enters 
into,  and  becomes  a  part  of  that  contract,  to  the  same  extent  and 
with  the  same  effect  as  if  written  into  the  contract  at  length. 
Each  state  must  prescribe  for  itself  who  of  its  residents  have 
capacity  to  contract,  and  what  changes  shall  be  made,  if  any,  in 
the  disabilities  imposed  by  the  common  law.  Thus,  in  Thompson 
V.  Kctchuni,  8  Johns.  192,  the  note  was  made  in  Jamaica.  The 
defense  was  infancy,  according  to  the  laws  of  New  York.  It 
was  determined  that  the  transaction  was  subject  to  the  laws  of 
the  place  of  contract,  and  that  infancy  was  a  defense,  or  not, 
according  to  the  laws  of  Jamaica.  Mr.  Justice  Story,  in  his  com- 
mentaries on  Conflict  of  Laws,  says:  "In  regard  to  questions 
of  minority  or  majority,  competency  or  incompetency  to  marry, 
incapacities  incident  to  coverture,  guardianship,  emancipation, 
and  other  personal  qualities  and  disabilities,  the  law  of  the  domi- 
cile of  l)irth,  or  the  law  of  any  other  acquired  and  fixed  domicile, 
is  not  generally  to  govern,  but  the  lex  loci  contractus  ant  actus, 
where  the  contract  is  made  or  the  act  done."  Story,  Conflict  of 
Laws,  sections  103,  241.  See,  also,  2  Kent  Commentaries.  233, 
note  ;  2  Kent  Commentaries,  458  ;  2  Kent  Commentaries,  459,  note. 
It  will  be  observed  that  Chancellor  Kent,   in  some  passages  of 


264  PRIVATi:    INTERNATIONAL    LAW. 

his  text,  seems  to  incline  to  the  civiHan  doctrine,  yet  the  notes 
clearly  indicates  that  he  concurs  with  Justice  Story.  See  further, 
on  this  subject,  Story  Conflict  of  Laws  (4th  ed.),  sections  loi, 
102.  The  case  of  Pearl  v.  Hansborough,  9  Humph.  426,  is  almost 
exactly  in  point.  In  that  case  a  married  woman,  domiciled  with 
her  husband  in  the  state  of  Mississippi,  by  the  law  of  which  a 
purchase  by  a  married  woman  was  valid,  and  the  property  pur- 
chased went  to  her  separate  use,  bought  personal  property  in 
Tennessee,  by  the  law  of  which  married  women  were  incapabie 
of  contracting.  The  contract  was  held  void  and  Linenforceable 
in  Tennessee.  See,  also,  Male  v.  Roberts,  3  Esp,  163;  Milliken 
V.  Pratt,  125  Mass.  374;  Carey  v.  Mackey,  82  Me.  516,  17  Am. 
St.  500  (20  Atl.  Rep.  84)  ;  Baum  v.  Birchall,  150  Pa.  St.  164 
(24  Atl.  Rep.  620)  ;  2  Parsons  Contracts  (8th  ed.),  *574,  note; 
2  Parsons  Contracts,  ^'575-"578.  Saul  v.  Creditors,  5  Mart.  (N. 
S.)  569,  setms  to  be  opposed  to  this  rule.  But  as  the  case  is  from 
Louisiana,  which  state  follows  the  civil  law,  it  is  not  an  authority. 
We  may  safely  affirm,  with  Chancellor  Kent,  that  while  the  con- 
tinental jurists  generally  adopt  the  law  of  domicile,  supposing 
it  to  come  in  conflict  with  the  law  of  the  place  of  contract,  the 
English  common  law  adopts  the  lex  loci  contractus.  Lord  Eldon, 
in  Male  v.  Roberts,  supra,  said :  'Tt  appears  from  the  evidence 
in  this  case  that  the  cause  of  action  arose  in  Scotland,  and  the 
contract  must  be  therefore  governed  by  the  laws  of  that  country, 
where  the  contract  arises.  Would  infancy  be  a  good  defense  by 
the  laws  of  Scotland,  had  the  action  been  commenced  there? 
What  the  law  of  Scotland  is  with  respect  to  the  right  of  recover- 
ing against  an  infant  for  necessaries,  I  cannot  say;  but,  if  the 
law  of  Scotland  is  that  such  a  contract  as  the  present  could  not 
be  enforced  against  an  infant,  that  should  have  been  given  in 
evidence,  and  I  hold  myself  not  warranted  in  saying  that  such 
a  contract  is  void  by  the  laws  of  Scotland  because  it  is  void  by  the 
law  of  England.  The  law  of  the  country  where  the  contract 
arose  must  govern  the  contract,  and  what  that  law  is  should  be 
given  in  evidence  to  me  as  a  fact.  No  such  evidence  has  been 
given,  and  I  cannot  take  the  fact  of  what  that  law  is  without 
evidence."  It  would  seem,  in  this  case,  though  not  distinctly 
stated,  that  both  parties  were  domiciled  in  England.  The  result 
of  the  application  of  these  rules  is  that  the  contract  was  void 


CAl  ACn  Y    OF    PERSONS.  265 

where  executed,  and  will  not  be  enforced  by  the  courts  of  this 
state. — Affirmed.-' 


■'Contracts. — It  has  been  doubted  whether  the  personal  competency  or 
incompttcncy  of  an  individual  to  contract  depends  on  the  law  of  the  place 
where  the  contract  is  made  or  on  the  law  of  the  place  where  the  contracting 
party  is  domiciled.  Perhaps  in  this  country  the  question  is  not  finally 
settled,  though  the  preponderance  of  opinion  here  as  well  as  abroad  seems 
to  be  in  favor  of  the  law  of  the  domicil.  Cooper  v.  Cooper,  H.  L.  13  App. 
Cas.  SS  (1888);  Freeman's  Appeal.  68  Conn.  533:  Woodzvard  v.  Woodzvard, 
87  Tenn.  644. 

Capacity  to  Deed  or  Mortgage  Land. — Capacity  to  convey  or  encumber 
an  interest  in  land  is  governed  by  the  law  of  the  situs,  and  not  by  the  law 
of  the  domicil.  This  is  the  general  ruling  in  the  United  States  in  whatso- 
ever court  the  question  may  arise,  domestic  or  foreign.  This  rule  applies 
to  questions  of  infancy,  coverture,  majority,  and  of  legal  capacity  generally. 
Cochran  v.  Benton,  126  Ind.  58;  Post  v.  First  Natl.  Bnk.,  138  III.  559- 


FOREIGN  CORPORATIONS. 

BANK  OF  AUGUSTA  v.  EARLE,  1839. 

[13  Pet.  (U.  S.)  519-1 

1.  Foreign  Corporation   Defined^  4.  What    Constitutes    "Doing   Busi- 

2.  Extra-territorial  Powers  of  Cor-  ness"  in  the  State. 

porations.  5.  Actions  By  and  Against  Foreign 

3.  Power    of    a    State    to    Exclude  Corporations. 

Foreign  Corporations. 

Tanev,  Ch.  J.,  delivered  the  opinion  of  the  court. — These 
three  cases  involve  the  same  principles,  and  have  been  brought 
before  us  by  wrfts  of  error  directed  to  the  circuit  court  for  the 
southern  district  of  Alabama.  The  first  two  have  been  fully 
argued  by  counsel ;  and  the  last  submitted  to  the  court  upon  the 
arsfuments  offered  in  the  other  two.  There  are  some  shades  of 
difference  in  the  facts,  as  stated  in  the  different  records,  but  none 
that  can  affect  the  decision.  We  proceed,  therefore,  to  express 
our  opinion  on  the  first  case  argued,  which  was  the  Bank  of 
Augusta  V.  Joseph  B.  Earle.  The  judgment  in  this  case  must 
decide  the  others. 

The  questions  presented  to  the  court  arise  upon  a  case  stated 
ii:  the  circuit  court  in  the  following  words: — "The  defendant 
defends  this  action  upon  the  following  facts,  that  are  admitted  by 
the  plaintiffs ;  that  plaintifi's  are  a  corporation,  incorporated  by  an 
act  of  the  legislature  of  the  state  of  Georgia,  and  have  powers 
usually  conferred  upon  banking  institutions,  such  as  to  purchase 


266  PRIVATT-    INTERNATIONAL    LAW. 

bills  of  exchange,  etc.  That  the  bill  sued  on  was  made  and 
indorsed,  for  the  purpose  of  being  discounted  by  Thomas  McGran, 
the  agent,  of  said  bank,  who  had  funds  of  the  plaintiffs  in  his 
hands,  for  the  purpose  of  purchasmg  bills,  which  funds 
were  derived  from  bills  and  notes  discounted  in  Georgia  by  said 
plaintiffs,  and  payable  in  Mobile;  and  the  said  McGran,  agent  as 
aforesaid,  ilid  so  discount  and  purchase  the  said  bill  sued  on,  in  the 
city  of  Mobile,  state  aforesaid,  for  the  benefit  of  said  bank,  and 
with  their  funds,  and  to  remit  said  funds  to  the  said  plaintiffs.  If 
the  court  shall  say,  that  the  facts  constitute  a  defence  to  this  action, 
judgment  will  be  given  for  the  defendant,  otherwise  for  plaintiffs, 
for  "the  amount  of  the  bill,  damages,  interest  and  costs;  either 
party  to  have  the  right  of  appeal  or  writ  of  error  to  the  supreme 
court,  upon  this  statement  of  facts,  and  the  judgment  thereon." 

Upon  this  statement  of  facts,  the  court  gave  judgment  for  the 
defendant ;  being  of  opinion,  that  a  bank  incorporated  by  the  laws 
of  Georgia,  with  a  power,  among  other  things,  to  purchase  bills  of 
exchange,  could  not  lawfully  exercise  that  power  in  the  state  of 
y\labama ;  and  that  the  contract  for  this  bill  was,  therefore,  void, 
and  did  not  bind  the  parties  to  the  payment  of  the  money. 

It  will  at  once  be  seen,  that  the  questions  brought  here  for 
decision  are  of  a  very  grave  character,  and  they  have  received 
from  the  court  an  attentive  examination.  A  multitude  of  corpor- 
ations, for  various  purposes,  have  been  chartered  by  the  several 
states ;  a  large  portion  of  certain  branches  of  business  has  been 
transacted  by  incorporated  companies,  or  through  their  agency; 
and  contracts  to  a  very  great  amount  have,  undoubtedly  been  made 
by  different  corporations,  out  of  the  jurisdiction  of  the  particular 
state  by  which  they  were  created.  In  deciding  the  case  before  us, 
we.  in  effect,  determine  whether  these  numerous  contracts  are 
valid,  or  not.  And  if,  as  has  been  argued  at  the  bar,  a  corpora- 
tion, from  its  nature  and  character,  is  incapable  of  making  such 
contracts;  or  if  they  are  inconsistent  with  the  rights  and  sov- 
ereignty of  the  states  in  which  they  are  made,  they  cannot  be 
enforced  in  courts  of  justice. 

Much  of  the  argimient  has  turned  on  the  nature  and  extent 
of  the  powers  which  belong  to  the  artificial  being  called  a  corpor- 
ation ;  and  the  rules  of  law  by  which  they  are  to  be  measured.  On 
the  part  of  the  plaintiff  in  error,  it  has  been  contended,  that  a  cor- 
poration, composed  of  citizens  of  other  states,  is  entitled  to  the 
l)encfit  of  that  provision  in  the  constitution  of  the  United  States 
which  declares  that  "the  citizens  of  each  state  shall  be  entitled  to 


rORLIGN    CORPORATIONS.  267 

all  privileg^es  and  immunities  of  citizens  in  the  several  states;" 
that  the  court  should  look  behind  the  act  of  incorporation,  and  see 
who  are  the  members  of  it ;  and  if.  in  this  case,  it  should  appear, 
that  the  corporation  of  the  Rank  of  Augusta  consists  altogether  of 
citizens  of  the  state  of  Georgia,  that  such  citizens  are  entitled  to 
the  privileges  and  immunities  of  citizens  in  the  state  of  Alabama ; 
and  as  the  citizens  of  Alabama  may,  unquestionably,  purchase  bills 
of  exchange  in  that  state,  it  is  insisted,  that  the  members  of  this 
corporation  are  entitled  to  the  same  privilege,  and  cannot  be  de- 
prived of  it,  even  by  express  provisions  in  the  constitution  or  laws 
of  the  state.  The  case  of  the  Bank  of  the  United  States  v. 
Deveaux,  5  Cranch  61.  is  relied  on  to  support  this  position. 

It  is  true,  that  in  the  case  referred  to,  this  court  decided,  that 
in  a  question  of  jurisdiction,  they  might  look  to  the  character  of 
the  persons  composing  a  corporation ;  and  if  it  appeared  that 
they  were  citizens  of  another  state,  and  the  fact  was  set  forth, 
by  proper  averments,  the  corporation  might  sue  in  its  corporate 
name,  in  the  courts  of  the  United  States.  But  in  that  case,  the 
court  confined  its  decision,  in  express  terms,  to  a  question  of  juris- 
diction— to  a  right  to  sue — and  evidently  went  even  so  far.  with 
some  hesitation.  We  fully  assent  to  the  propriety  of  that  decision  ; 
and  it  has  ever  since  been  recognized  as  authority  in  this  court. 
But  the  principle  has  never  been  extended  any  further  than  it  was 
carried  in  that  case ;  and  has  never  been  supposed  to  extend  to 
contracts  made  by  a  corporation  ;  especially  in  another  sovereignty. 
If  it  were  held  to  embrace  contracts,  and  that  the  members  of  a 
corporation  were  to  be  regarded  as  individuals  carrying  on  busi- 
ness in  their  corporate  name,  and  therefore,  entitled  to  the  privi- 
leges of  citizens,  in  matters  of  contract,  it  is  very  clear,  that  they 
must,  at  the  same  time,  take  upon  themselves  the  liabilities  of 
citizens,  and  be  bound  by  their  contracts  in  like  manner.  The 
result  of  this  would  be,  to  make  a  corporation  a  mere  partnership 
in  business,  in  which  each  stockholder  would  be  liable,  to  the 
whole  extent  of  his  property,  for  the  debts  of  the  corporation  ; 
and  he  might  be  sued  for  them,  in  any  state  in  which  he  might 
happen  to  be  found.  The  clause  of  the  Constitution  referred  to, 
certainly  never  intended  to  give  to  the  citizens  of  each  state  the 
privileges  of  citizens  in  the  several  states,  and  at  the  same  time  to 
exempt  them  from  the  liabilities  which  the  exercise  of  such 
privileges  would  bring  upon  individuals  who  were  citizens  of  the 
state.  This  would  be  to  give  the  citizens  of  other  states  far  higher 
and  greater  privileges  than  are  enjoyed  by  the  citizens  of  the 
state  itself.     Besides,  it  would  deprive  every  state  of  all  control 


268  PRIVATE    INTERNATIONAL    LAW. 

over  the  extent  of  corporate  franchises  proper  to  be  granted  in 
the  state ;  and  corporations  would  be  chartered  in  one,  to  carry 
on  their  operations  in  another.  It  is  impossible,  upon  any  sound 
principle,  to  give  such  a  construction  to  the  article  in  question. 
Whenever  a  corporation  makes  a  contract,  it  is  the  contract  of 
tlie  legal  entity — of  the  artificial  being  created  by  the  charter — 
and  not  the  contract  of  the  individual  members.  The  only  rights 
it  can  claim  are  the  rights  which  are  given  to  it  in  that  character, 
and  not  the  rights  which  belong  to  its  members  as  citizens  of  a 
state ;  and  we  now  proceed  to  inquire,  v/hat  rights  the  plaintiffs 
in  error,  a  corporation  created  by  Georgia,  could  lawfully  exercise 
in  another  state  ;  and  whether  the  purchase  of  the  bill  of  exchange 
op  which  this  suit  is  brought,  was  a  valid  contract,  and  obligatory 
•on  the  parties. 

The  nature  and  character  of  a  corporation  created  by  a 
statute,  and  the  extent  of  the  powers  which  it  may  lawfully  exer- 
cise, have  upon  several  occasions  been  under  consideration  in  this 
court.  In  the  case  of  Head  v.  Providence  Insurance  Company, 
2  Cranch  127,  Chief  Justice  Marshall,  in  delivering  the  opinion 
of  the  court,  said,  "without  ascribing  to  this  body,  which  in  its 
corporate  capacity  is  the  mere  creature  of  the  act  to  which  it  owes 
its  existence,  all  the  qualities  and  disabilities  annexed*  by  the  com- 
mon law  to  ancient  institutions  of  this  sort,  it  may  correctly  be 
5aid,  to  be  precisely  what  the  incorporating  act  has  made  it ;  to 
•derive  all  its  powers  from  that  act,  and  to  be  capable  of  exerting 
its  faculties  only  in  the  manner  which  that  act  authorizes.  To  this 
source  of  its  being,  then,  we  must  recur  to  ascertain  its  powers , 
and  to  determine  whether  it  can  complete  a  contract  by  such  com- 
munications as  are  in  this  record."  In  the  case  of  Dartmouth 
■College  V.  IVoodzvard,  4  Wheat.  636,  the  same  principle  was  again 
■decided  by  the  court.  "A  corporation,"  said  the  court,  "is  an  arti- 
ficial being,  invisible,  intangible,  and  existing  only  in  contempla- 
tion of  law.  Being  a  mere  creature  of  the  law,  it  possesses  only 
those  properties  which  the  charter  of  its  creation  confers  upon  it, 
either  expresslv,  or  as  incidental  to  its  very  existence."  And  in 
the  case  of  the  Bank  of  the  United  States  v.  Dandridge,  12 
Wheat.  64,  where  the  question  in  relation  to  the  powers  of  cor- 
porations and  their  mode  of  action,  were  very  carefully  considered, 
the  court  said.  "But  whatever  may  be  the  implied  powers  of  aggre- 
gate corporations,  by  the  common  law,  and  the  modes  by  vvhich 
those  powers  are  to  be  carried  into  operation  ;  corporations  created 
hy  statute,  must  depend,  both  for  their  powers  and  the  mode  of 


FOREIGN    CORPORATIONS. 


269 


exercising  them,  upon  the  true  construction  of  tlie  statute  itself." 
It  cannot  be  necessary  to  add  to  these  authorities.  Atid  it 
inay  be  safely  assumed,  that  a  corporation  can  mal:>  no  contracts, 
and  do  no  acts,  either  within  or  without  the  state  which  creates  it, 
except  such  as  are  authorized  by  its  charter  ;  and  those  acts  must 
also  be  done,  by  such  ofiticers  or  agents,  and  in  such  manner  as 
the  charter  authorizes.  And  if  the  law  creating  a  corporation, 
does  not,  by  the  true  construction  of  the  words  used  in  the  ciiarter. 
give  it  the  right  to  exercise  its  powers  beyond  the  limits  of  the 
state,  all  contracts  made  by  it  in  other  states  would  be  void. 

The  charter  of  the  Hank  of  Augusta  authorizes  it,  in  general 
terms,  to  deal  in  bills  of  exchange ;  and  consequently,  gives  it  the 
power  to  purchase  foreign  bills  as  w-ell  as  inland ;  in  other  words^ 
to  purchase  bills  payable  in  another  state.  The  power  thus  given, 
clothed  the  corporation  with  the  right  to  make  contracts  out  of  the 
state,  in  so  far  as  Georgia  could  confer  it.  For  whenever  it  pur- 
chased a  foreign  bill,  and  forwarded  it  to  an  agent  to  present  for 
acceptance,  if  it  was  honored  by  the  drawee,  the  contract  of  accept- 
ance was  necessarily  made  in  another  state ;  and  the  general  power 
to  purchase  bills,  without  any  restriction  as  to  place,  by  its  fair 
and  natural  import  authorized  the  bank  to  make  such  purchases, 
wherever  it  was  found  most  convenient  and  profitable  to  the  insti- 
tution ;  and  also  to  employ  suitable  agents  for  that  purpose.  The 
purchase  of  the  bill  in  question  was,  therefore,  the  exercise  of  one 
of  the  pov/ers  which  the  bank  possessed  under  its  charter;  and 
was  sanctioned  by  the  law  of  Georgia  creating  the  corporation, 
so  far  as  that  state  could  authorize  a  corporation  to  exercise  its 
powers  beyond  the  limits  of  its  own  jurisdiction. 

But  it  has  been  urged  in  the  argument,  that  notwithstanding 
the  powers  thus  conferred  by  the  terms  of  the  charter,  a  corpora- 
tion, from  the  very  nature  of  its  being,  can  have  no  authority  to 
contract  out  of  the  limits  of  the  state ;  that  the  laws  of  "a  state 
can  have  no  extra-territorial  operation  ;  and  that  as  a  corporation 
is  the  mere  creature  of  the  law  of  the  state,  it  can  have  no  exist- 
ence beyond  the  limits  in  which  that  law  operates ;  and  that  it 
must  necessarily  be  incapable  of  making  a  contract  in  another 
place.  It  is  very  true,  that  a  corporation  can  have  no  legal  ex- 
istence out  of  the  boundaries  of  the  sovereignty  by  which  it  is 
created.  It  exists  only  in  contemplation  of  law,  and  by  force  of 
the  law  ;  and  where  that  law  ceases  to  operate,  and  is  no  longer 
obligatory,  the  corporation  can  have  nc  existence.  It  must  dwell 
in  [he  place  of  its  creation,  and  cannot  migrate  to  another  sov- 


270  PRIVATE    INTERNATIONAL    LAW. 

ereignty.  But  although  it  must  hve  aud  have  its  being  in  that 
state  only,  yet  it  does  not  by  any  means  follow,  that  its  existence 
there  will  not  be  recognized  in  other  places ;  and  its  residence  in 
one  state  creates  no  insuperable  objection  to  its  power  of  con- 
tracting in  another.  It  is,  indeed,  a  mere  artificial  being,  invisible 
and  intangible;  yet  it  is  a  person,  for  certain  purposes,  in  con- 
templation of  law,  and  has  been  recognized  as  such  by  the  decisions 
of  this  court.  It  was  so  held,  in  the  case  of  the  United  States  v. 
Amedy,  ii  Wheat.  412,  and  in  Beaston  v.  Farmers'  Bank  of  Dela- 
ware, \2  Pet.  125.  Now,  natural  persons,  through  the  interven- 
tion of  agents,  are  continually  making  contracts  in  countries  in 
which  they  do  not  reside ;  and  where  they  are  not  personally  pres- 
ent when  tne  contract  is  made;. and  nobody  has  ever  doubted  the 
validity  of  these  agreements.  And  what  greater  objection  can 
there  be  to  the  capacity  of  an  artificial  person,  by  its  agents,  to 
make  a  contract,  within  the  scope  of  its  limited  powers,  in  a  sov- 
ereignty in  which  it  does  not  reside;  provided  such  contracts  are 
permitted  to  be  made  by  them  by  the  laws  of  the  place? 

The  corporation  must,  no  doubt,  show,  that  the  law  of  its 
creation  gave  it  authority  to  make  such  contracts,  through  such 
agents.  Yet.  as  in  the  case  of  a  natural  person,  it  is  not  necessary 
that  it  should  actually  exist  in  the  sovereignty  in  which  the  con- 
tract is  made.  It  is  sufficient,  that  its  existence  as  an  artificial 
person,  in  the  state  of  its  creation,  is  acknowledged  and  recog- 
nized by  the  lav/  of  the  nation  where  the  dealing  takes  place; 
and  that  it  is  permitted,  by  the  laws  of  that  place,  to  exercise  there 
the  powers  with  which  it  is  endowed. 

Every  power,  however,  of  the  description  of  which  we  are 
speaking,  which  a  corporation  exercises  in  another  state,  depends 
for  its  validity  upon  the  laws  of  the  sovereignty  in  which  it  is 
exercised ;  and  a  corporation  can  make  no  valid  contract,  without 
their  sanction,  express  or  implied.     And  this  brings   us  to  the 
question  w  hich  has  been  so  elaborately  discussed ;  whether,  by  the 
comity  of  nations,  and  between  these  states,  the  corporations  of 
one  state  are  perm.itted  to  make  contracts  in  another.     It  is  need- 
less to  enumerate  here  the  instances  in  which,  by  the  general 
practice  of  civilized  countries,  the  laws  of  the  one,  will,  by  the 
comity  of  nations,  be  recognized  and  executed  in  another,  where 
the  right  of  individuals  are  concerned.     The  cases  of  contracts 
made  in  a  foreign  country  are  familiar  examples ;  and  courts  of 
•justice  have  always  expounded  and  executed  them,  according  to 
the  laws  of  the  place  in  which  they  were  made ;  provided  that  law 


FOREIGN    CORPORATIONS.  271 

was  not  rtpugnant  to  tlie  laws  or  policy  of  their  own  country. 
The  comity  thus  extended  to  other  nations,  is  no  impeachment  of 
scvcreignty.  It  is  the  voluntary  act  of  the  nation  by  which  it  ii 
offered;  and  is  inadmissiljle.  when  contrary  to  its  policy,  or  preju- 
dicial to  its  interests.  But  it  contributes  so  largely  to  promoiie 
justice  between  individuals,  and  to  produce  a  friendly  intercourse 
between  the  sovereignties  to  which  they  belong,  that  courts  of 
justice  ha\c  continually  acted  upon  it,  as  a  part  of  the  voluntary 
law  of  nations.  It  is  truly  said,  in  Story's  Conflict  of  Laws  37, 
that  "In  the  silence  of  any  positive  rule,  affirming  or  denying,  or 
restraining  the  operation  of  foreign  laws,  courts  of  justice  pre- 
sume the  tacit  adoption  of  them  by  their  own  government,  unless 
they  are  repugnant  to  its  policy,  or  prejudicial  to  its  interests.  It 
is  not  the  comity  of  the  courts,  but  the  comity  of  the  nation,  which 
is  administered,  and  ascertained  in  the  same  way,  and  guided  by 
the  same  reasoning  by  which  all  other  principles  of  municipal  law 
are  ascertained  and  guided." 

Adopting,  as  we  do,  the  principle  here  stated,  we  proceed  to 
inquire,  whether,  by  the  comity  of  nations,  foreign  corporations 
are  permitted  to  make  contracts  within  their  jurisdiction;  and  we 
can  perceive  no  sutificiont  reason  for  excluding  them,  when  they 
are  not  contrary  to  the  known  policy  of  the  state,  or  injurious 
to  its  interests.  It  is  nothing  more  than  the  admission  of  the 
existence  of  an  artificial  person,  created  by  the  law  of  another 
state,  and  clothed  with  the  power  of  making  certain  contracts; 
it  is  but  the  usual  comity  of  recognizing  the  law  of  another  state. 
In  England,  from  which  we  have  received  our  general  principles 
of  jurisprudence,  no  doubt  appears  to  have  been  entertained,  of 
the  right  of  a  foreign  corporation  to  sue  in  its  courts,  since  the 
case  Hcurlquez  v.  Dutch  West  India  Company,  decided  in  1729, 
2  Ld.  Raym.  1532.  And  it  is  a  matter  of  history,  which  this  court 
are  bound  to  notice,  that  corporations  createc  in  this  countrv, 
havo  been  in  the  open  practice,  for  many  years  past,  of  making 
contracts  in  England,  of  various  kinds,  and  to  very  large  amounts  ; 
and  we  have  never  seen  a  doubt  suggested  there,  of  the  validity 
of  these  contracts,  by  any  court  or  any  jurist.  It  is  impossible  to 
imagine,  that  anv  court  in  the  United  States  would  refuse  to 
execute  a  contract,  by  which  an  American  corporation  had  bor- 
rowed money  in  England ;  yet  if  the  contracts  of  corporations 
made  out  of  the  state  by  which  they  were  created,  are  void,  even 
contracts  of  that  description  could  not  be  enforced. 

It  has,  however,  been  supposed,  that  the  rules  of  comity  be- 


272  PRIVATE    INTERNATIONAL    LAW. 

tvveen  foreign  nations  dr  not  apply  to  the  states  of  this  Union; 
that  thev  extend  to  one  another  no  other  rights  than  those  which 
are  given  by  the  Constitution  of  the  United  States ;  and  that  the 
courts  of  the  general  government  are  not  at  liberty  to  presume, 
in  the  absence  cif  all  legislation  on  the  subject,  that  a  state  has 
adopted  the  comity  of  nations  toward  the  other  states,  as  a  part 
of  its  jurisprudence ;  or  that  it  acknowledges  any  rights  but  those 
which  are  secured  by  the  Constitution  of  the  United  States.     The 
court  think  otherwise.     The   intimate  union  of  these   states,   as 
members  of  the  same  great  political  family;  the  deep  and  vital 
interests  which  bind  them  so  closely  together;  should  lead  us,  in 
the  absence  of  proof  to  the  contrary,  to  presume  a  greater  degree 
of  comity,  and  friendship,  and  kindness  toward  one  another,  than 
we  should   be   authorized   to   presume  between   foreign   nations. 
And  when  (as  without  doubt  must  occasionally  happen)  the  inter- 
est or  policy  of  any  state  requires  it  to  restrict  the  rule,  it  has  but 
to  declare  its  will,  and  tlie  legal  presumption  is  at  once  at  an  end. 
But  until  this  is  done,  upon  what  grounds  could  this  court  refuse 
to  administer  the  law  of  international  comity  between  these  states? 
They  are  sovereign  states;  and  the  history  of  the  past,  and  the 
events  which  are  daily  occurring,  furnish  the  strongest  evidence 
that  they  have  adopted  towards  each  other  the  laws  of  comity,  in 
their  fullest  extent.     JNIoney  is  frequently  borrowed  in  one  state, 
by  a  corporation  created  in  another.    The  numerous  banks  estab- 
lished bv  different  states  are  in  the  constant  habit  of  contracting 
and  dealing  with  one  anodier.    Agencies  for  corporations  engaged 
in  the  business  of  insurance  and  of  banking  have  been  established 
in  other  states,  and  suffered  to  make  contracts,  without  any  objec- 
tion on  the  part  of  the  state  authorities.     These  usages  of  com- 
merce and  trade  have  been  so  general  and  public,  and  have  been 
practiced  for  so  long  a  period  of  time,  and  so  generally  acquiesced 
in  by  the  states,  that  the  court  cannot  overlook  them,  when  a 
question    like    the    one   before    us    is    under   consideration.     The 
silence  of  the   state  authorities,  while  these  events  are  passing 
before  them,  show  their  assent  to  the  ordinary  laws  of  comity 
whicli  permit  a  corporation  to  make  contracts  in  another  state. 
But  we  are  not  left  to  infer  it  merely  from  the  general  usages 
of  trade,  and  the  silent  acquiescence  of  the  states.     It  appears 
from  the  cases  cited  in  the  argument,  which  it  is  unnecessary  to 
recapitulate  in  this  opinion,  that  it  has  been  decided  in  many  of 
the  state  courts,  we  believe  in  all  of  them  where  the  question  has 
arisen,  that  a  corporation  of  one  state  may  sue  in  the  courts  of 


FOREIGN    CORPORATIONS.  273 

another.  If  it  may  sue,  why  may  it  not  make  a  contract?  The 
riglit  to  sue  is  one  of  the  powers  wliich  it  derives  from  its  cliarter. 
If  the  courts  of  another  coimtry  take  notice  of  its  existence  as 
a  corporation,  so  far  as  to  allow  it  to  maintain  a  suit,  and  permit 
it  to  exercise  that  power ;  why  should  not  its  existence  be  recog- 
nized for  ether  purposes,  and  the  corporation  permitted  to  exer- 
cise another  power,  which  is  given  to  it  by  the  same  law  and  the 
same  sovereignty — where  the  last-mentioned  power  does  not  come 
in  conflict  with  the  interest  or  policy  of  the  state?  There  is  cer- 
tainly noticing  in  the  nature  and  character  of  a  corporation  which 
could  justly  lead  to  such  a  distinction ;  and  which  should  extend 
to  it  the  comitv  of  suit,  and  refuse  to  it  the  comity  of  contract. 
If  it  is  allowed  to  sue,  it  would,  of  course,  be  permitted  to  com- 
promise, if  it  thought  proper,  with  its  debtor;  to  give  him  time; 
to  accept  something  else  in  satisfaction  ;  to  give  him  a  release ; 
and  to  employ  an  attorney  for  itself  to  conduct  its  suit.  These  are 
all  matters  of  contract,  and  yet  are  so  intimately  connected  with  the 
right  to  sue,  that  the  latter  could  not  be  effectually  exercised,  if 
the  former  were  denied. 

We  turn,  in  the  next  place,  to  the  legislation  of  the  states. 
So  far  as  any  of  them  have  acted  on  this  subject,  it  is  evident,  that 
th^  have  regarded  the  comity  of  contract,  as  well  as  the  comity 
of  suit,  to  be  a  part  of  the  law  of  the  state,  unless  restricted  by 
statute.  Thus,  a  law  was  passed  by  the  state  of  Pennsylvania, 
March  lOth,  1810, 'which  prohibited  foreigners  and  foreign  cor- 
porations from  making  contracts  of  insurance  against  fire,  and 
other  losses  mentioned  in  the  law.  In  New  York,  also,  a  law  was 
passed,  March  i8th,  1814,  which  prohibited  foreigners  and  for- 
eign corporations  from  making  in  that  state  insurances  against 
fire;  and  by  another  law,  passed  April  21st,  1818.  corporations 
chartered  by  other  states  are  prohibited  from  keeping  any  office 
of  deposit  for  the  purpose  of  discounting  promissory  notes,  or 
carrying  on  any  kind  of  business  which  incorporated  banks  are 
authorized  by  law  to  carry  on.  The  prohibition  of  certain  speci- 
fied contracts  by  corporations,  in  these  laws,  is,  by  necessary  im- 
plication, an  admission  that  other  contracts  may  be  made  by  for- 
eign corporations  in  Pennsylvania  and  New  York ;  and  that  no 
legislative  permission  is  necessary  to  give  them  validity.  And 
the  language  of  these  prohibitory  acts  most  clearly  indicates, 
that  the  contracts  forbidden  by  them  might  lawfully  have  been 
made,  before  these  laws  were  passed.  Maryland  has  gone 
still  further  in  recognizing  this  right.  By  a  law  passed  in  1834. 
18 


274  PRIVATE    INTERNATIONAL    LAW. 

that  state  has  prescribed  the  manner  in  which  corporations,  not 
chartered  by  the  state,  ''which  shall  transact  or  shall  have  trans- 
acted business"  in  the  state,  may  be  sued  in  its  courts,  upon  con- 
tracts n)ade  in  the  state.  The  law  assumes,  in  the  clearest  man- 
ner, that  such  contracts  were  valid,  and  provides  a  remedy  by 
which  to  enforce  them. 

In  the  legislation  of  congress  also,  where  the  states  and  the 
people  of  the  several  states  are  all  represented,  we  shall  find  proof 
of  the  general  understanding  in  the  United  States,  that  by  the 
law  of  comity  among  the  states,  the  corporations  chartered  by  one 
were  permitted  to  make  contracts  in  the  others.  By  the  act  of 
congress  of  June  23d,  1836  (5  U.  S.  Stat.  52),  regulating  the 
deposits  of  public  money,  the  secretary  of  the  treasury  was 
authorized  to  make  arrangements  with  some  bank  or  banks,  to 
establish  an  agency  in  the  states  and  territories  where  there  was 
no  bank,  or  none  that  could  be  employed  as  a  public  depository, 
to  receive  and  disburse  the  public  money  which  might  be  directed 
to  be  there  deposited.  Now,  if  the  proposition  be  true,  that  a 
corporation  created  by  one  state  cannot  make  a  valid  contract  m 
another,  the  contracts  made  through  this  agency,  in  behalf  of  the 
bank,  out  cf  the  state  where  the  bank  itself  was  chartered,  would 
all  be  void,  both  as  respected  the  contracts  with  the  government 
and  the  individuals  who  dealt  with  it.  How  could  such  an  agency, 
upon  the  principles  now  contended  for,  have  conformed  any  of 
the  duties  for  which  it  was  established  ? 

But  it  cannot  be  necessary  to  pursue  the  argument  further. 
We  think  it  is  well  settled,  that  by  the  law  of  comity  among 
nations,  a  corporation  created  by  one  sovereignty  is  permitted 
to  make  contracts  in  another,  and  to  sue  in  its  courts ;  and  that 
the  same  law  of  comity  prevails  among  the  several  sovereignties 
of  this  Union.  The  public,  and  well-known,  and  long-continued 
usages  of  trade ;  the  general  acquiesence  of  the  states ;  the  par- 
ticular legislation  of  some  of  them,  as  well  as  the  legislation  of 
congress ;  aH  concur  in  proving  the  truth  of  this  proposition. 

But  we  have  already  said,  that  this  comity  is  presumed  from 
the  silent  acquiescence  of  the  state.  Whenever  a  state  sufficiently 
indicates  that  contracts  winch  derive  their  validity  from  its  comity 
are  repugnant  to  its  policy,  or  are  considered  as  injurious  to  its 
interests ;  the  presumption  in  favor  of  its  adoption  can  no  longer 
be  made.  And  it  remains  to  inquire,  whether  there  is  anything  in 
the  constitution  or  laws  of  Alabama,  from  which  this  court  would 
be  justified  in  concluding  that  the  purchase  of  the  bill  in  question 
was  contrary  to  its  policy. 


FOREIGN    CORPORATIONS.  275 

The  constitution  of  /Mabama  contains  the  following  provis- 
ions in  relation  to  banks :  "One  state  bank  may  be  estabHshed, 
with  such  number  of  brandies  as  the  general  assembly  may, 
from  time  to  time,  deem  expedient,  provided  that  no  branch 
bank  shall  be  established,  nor  l)ank  charter  renewed,  under  the 
authority  of  this  state,  without  the  concurrence  of  two-thirds  of 
both  houses  of  the  general  assembly ;  and  provided  also,  that 
not  more  than  one  bank  or  branch  bank  shall  be  established,  nor 
bank  charter  renewed,  but  in  conformity  to  the  following  rules : 
I.  At  least  two-fifths  of  the  capital  stock  shall  be  reserved  for  tiie 
state.  2.  A  proportion  of  power,  in  the  direction  of  the  bank, 
shall  be  reserved  to  the  state,  equal  at  least  to  its  proportion  of 
stock  therein.  3.  The  state  and  individual  stockholders  shall  be 
liable  respectively  for  the  debts  of  the  bank,  in  proportion  to  their 
stock  holden  therein.  4.  The  remedy  for  collecting  debts  shall  be 
reciprocal,  for  and  against  the  bank.  5.  No  bank  shall  commence 
operations,  until  half  of  the  capital  stock  subscribed  for  be  actually 
paid  in  gold  and  silver;  which  amount  shall,  in  no  case,  be  less 
than  $100,000. 

Now,  from  these  provisions  in  the  constitution,  it  is  evidently 
the  policy  of  Alabama,  to  restrict  the  power  of  the  legislature  in 
relation  to  bank  charters,  and  to  secure  to  the  state  a  large  portion 
of  the  profits  of  banking,  in  order  to  provide  a  public  revenue; 
and  also  to  make  safe  the  debts  which  should  be  contracted  by 
the  banks.  The  meaning,  too,  in  which  that  state  used  the  word 
bank,  in  her  constitution,  is  sufficiently  plain,  from  its  subsequent 
legislation.  All  of  the  banks  chartered  by  it,  are  authorized  to 
receive  deposits  of  m.oney,  to  discount  notes,  to  purchase  bills  of 
exchange,  and  to  issue  their  own  notes,  payable  on  demand,  to 
bearer.  These  are  the  usual  powers  conferred  on  the  banking 
corporations  in  the  different  states  of  the  Union;  and  when  we 
are  dealing  with  the  business  of  banking  in  Alabama,  we  must 
undoubtedly  attach  to  it  the  meaning  in  which  it  is  used  in  the 
constitution  and  laws  of  the  state.  Upon  so  much  of  the  policy 
of  Alabama,  therefore,  in  relation,  to  banks  as  is  disclosed  by  its 
constitution,  and  upon  the  meaning  wdiich  that  state  attaches  to 
the  word  bank,  we  can  have  no  reasonable  doubt.  But  before  this 
court  can  undertake  to  say,  that  the  discount  of  the  bill  in  question 
was  illegal,  many  other  inquiries  must  be  made,  and  many  other 
difficulties  must  be  solved.  Was  it  the  policy  of  Alabama,  to 
exclude  all  competition  with  its  own  banks,  by  the  corporations 
of  other  states.''    Did  the  state  intend,  by  these  provisions  in  its 


276  PRIVATE    INTERNATIONAL    LAW, 

constitution,  and  these  charters  to  its  banks,  to  inhibit  the  circula- 
tion of  the  notes  of  other  banks,  the  discount  of  notes,  the  loan 
of  money,  and  the  purchase  of  bills  of  exchange?  Or  did  it 
design  to  go  still  further,  and  forbid  the  banking  corporations  of 
other  states  from  making  a  contract  of  any  kind  within  its  terri- 
tory? Did  it  mean  to  prohibit  its  own  banks  from  keeping  mutual 
accounts  with  the  banks  of  other  states,  and  from  entering  into 
any  contract  with  them,  express  or  implied?  Or  did  she  mean 
to  give  to  her  banks  the  power  of  contracting,  within  the  limits 
of  the  state  with  foreign  corporations,  and  deny  it  to  individual 
citizens?  She  may  believe  it  to  be  the  interest  of  her  citizens,  to 
permit  the  competition  of  other  banks  in  the  circulation  of  notes, 
in  the  purchase  and  sale  of  bills  of  exchange,  and  in  the  loan  of 
money.  Or  she  may  think  it  to  be  her  interest,  to  prevent  the 
circulation  of  the  notes  of  other  banks ;  and  to  prohibit  them  from 
sending  money  there  to  be  employed  in  the  purchase  of  exchange, 
or  making  contracts  of  any  other  description. 

The  state  has  not  made  known  its  policy  upon  any  of  these 
points.  And  how  can  this  court,  with  no  other  light  before  it, 
undertake  to  mark  out,  by  a  definite  and  distinct  line,  the  policy 
which  Alabama  has  adopted  in  relation  to  this  complex  and  intri- 
cate question  of  political  economy?  It  is  true,  that  the  state  is  the 
principal  stockholder  in  her  own  banks.  She  has  created  seven ; 
and  in  five  of  them,  the  state  owns  the  whole  stock ;  and  in  the 
others,  two-fifths.  Tins  proves  that  the  state  is  deeply  interested 
in  the  successful  operation  of  her  banks,  and  it  may  be  her  policy 
to  shut  out  all  interference  with  them.  In  another  view  of  the 
subject,  however,  she  may  believe  it  to  be  her  policy  to  extend 
the  utmost  liberality  to  the  banks  of  other  states ;  in  the  expec- 
tation that  it  would  produce  a  corresponding  comity  in  other 
states  towards  the  banks  in  which  she  is  so  much  interested.  In 
this  respect,  it  is  a  question  chiefly  of  revenue,  and  of  fiscal  policy. 
How  can  this  court,  with  no  other  aid  than  the  general  principles 
asserted  in  her  constitution,  and  her  investments  in  the  stocks 
of  her  own  banks,  undertake  to  carry  out  the  policy  of  the  state 
upon  such  a  su])iect,  in  all  of  its  details,  and  decide  how  far  it 
extends,  and  what  qualifications  and  limitations  are  imposed  upon 
it?  These  questions  must  be  determined  by  the  state  itself,  and 
not  by  the  courts  of  the  United  States.  Every  sovereignty  would, 
without  dcubt,  choose  to  designate  its  own  line  of  policy ;  and 
would  never  consent  to  leave  it  as  a  problem  to  be  worked  out  by 
the  courts  of  the  United  States,  from  a  few  general  principles. 


FOREIGN    CORPORATIONS. 


277 


which  might  very  naturally  be  misunderstood  or  misapplied  by 
the  court.  It  would  hardly  be  respectful  to  a  state,  for  this 
court  to  forestall  its  decision,  and  to  say,  in  advance  of  her  legis- 
lation, what  her  interest  or  policy  demands.  Such  a  course  would 
savor  more  of  legislation  than  of  judicial  interpretation. 

If  we  proceed  from  the  constitution  and  bank  charters  to 
other  acts  of  legislation  by  the  state,  we  find  nothing  that  should 
lead  us  to  a  contrary  conclusion.     By  an  act  of  assembly  of  the 
state,  passed  January   12th,    1827,  it  was  declared  unlawful   for 
any  person,  body  corporate,  company  or  association,  to  issue  any 
note  for  circulation  a=;  a  bank-note,  without  the  authority  of  law ; 
and   a  fine  was  imposed   upon  any  one  offending  against  this 
statute.    Now.  this  act  protected  the  privileges  of  her  own  banks, 
in  relation  to  bank-notes  only ;  and  contains  no  prohibition  against 
the  purchase  of  bills  of  exchange,  nor  against  any  other  business 
by   foreign   banks,   which   might   interfere   with   her  own   bank- 
ing  corporations.      And    if   we    were   to   form    our   opinion   of 
the  policy  of  Alabama  from  the  provisions  of  this  law,  we  should 
be  bound  to  say,  that  the  legislature  deemed  it  to  be  the  interest 
and  policv  of  the  state,  not  to  protect  its  own  banks  from  compe- 
tition in  the  purchase  of  exchange,  nor  in  anything  but  the  issuing 
of  notes  for  circulation.     But  this  law  was  repealed  by  a  subse- 
quent law,  passed  in  1833,  repealing  all  acts  of  assembly  not  com- 
prised in  a  digest  then  prepared  and  adopted  by  the  legislature. 
The  law  of  1827  above  mentioned  was  not  contained  in  this  digest, 
and  was  consequently  repealed.     It  has  been  said  at  the  bar,  in 
the  argument,  that  it  was  omitted  from  the  digest  by  mistake,  and 
was  not  intended  to  be  repealed.    But  this  court  cannot  act  judici- 
ally upon  such  an  assumption.     We  must  take  their  laws  and 
policy  to  be  such  as  we  find  them  in  their  statutes.     And  the  only 
inference  that  we  can  draw  from  these  two  laws,  is,  that  after 
having  prohibited,  under  a   penalty,  any  competition   with  their 
banks,    by    the    issue    of    notes    for    circulation,    they    changed 
their  policy,  and  determined  to  leave  the  whole  business  of  bank- 
ing open  to  the  rivalry  of  others.     The  other  laws  of  the  state, 
therefore,  in  addition  to  the  constitution  and  charters,  certainly 
would  not  authorize  this  court  to  say,  that  the  purchase  of  bills 
by  the  corporations  of  another  state  was  a  violation  of  its  policy. 
The  decisions  of  its  judicial  tribunals  lead  to  the  same  result. 
It  is  true,  that  in  the  case  of  the  State  v.  Stcbbins,  i  Stew.  312, 
the  court  said,  that  since  the  adoption  of  their  constitution,  bank- 
ing in  that  state  was  tc  be  regarded  as  a  franchise.    And  this  case 


278  PRIVATi.    INTERNATIONAL    LAW. 

has  been  much  rehed  on  by  the  defendant  in  error.  Now,  we  ar« 
satisfied,  from  a  careful  examination  of  the  case,  that  the  worO 
franchise  was  not  used,  and  could  not  have  been  used,  by  the 
court,  in  the  broad  sense  imputed  to  it  in  the  argument.  For  if 
banking  includes  the  purchase  of  bills  of  exchange,  and  all  bank- 
ing is  to  be  regarded  as  the  exercise  of  a  franchise,  the  decision 
of  the  court  would  amount  tothis — that  no  individual  citizen  of 
Alabama  could  purchase  such  a  bill.  For  franchises  are  special 
privileges  conferred  by  government  upon  individuals,  and  which 
do  not  belong  to  the  citizens  of  the  country,  generally,  of  common 
rieht.  It  is  essential  to  the  character  of  a  franchise,  that  it  should 
be  a  grant  from  the  sovereign  authority,  and  in  this  country,  no 
franchise  can  be  held,  which  is  not  derived  from  a  law  of  the  state. 
But  it  cannot  be  supposed,  that  the  constitution  of  Alabama  in- 
tended to  prohibit  its  merchants  and  traders  from  purchasing  or 
selling  bills  of  exchange ;  and  to  make  it  a  monopoly  in  the  hands 
of  their  banks.  And  it  is  evident,  that  the  court  of  Alabama,  in 
the  case  of  the  State  v.  Stebbins,  did  not  mean  to  assert  such  a 
principle.  In  the  passage  relied  on,  they  are  speaking  of  a  paper 
circulating  currency,  and  asserting  the  right  of  the  state  to  regu- 
late and  to  limit  it. 

The  institutions  of  Alabama,  like  those  of  the  other  states, 
are  founded  upon  the  great  principles  of  the  common  law ; 
and  it  is  very  clear,  that  at  common  law,  the  right  of  banking, 
in  all  its  ramifications,  belonged  to  individual  citizens;  and 
might  be  exercised  by  them  at  their  pleasure.  And  the  correct- 
ness of  this  principle  is  not  questioned  in  the  case  of  the  State 
v.  Stebbins.  Undoubtedly,  the  sovereign  authority  may  regulate 
and  restrain  this  right ;  but  the  constitution  of  Alabama  purports  to 
be  nothing  more  than  a  restriction  upon  the  power  of  the  legis- 
lature, in  relation  to  hanking  corporations;  and  does  not  appear 
to  have  been  intended  as  a  restriction  upon  the  rights  of  indi- 
viduals. That  part  of  the  subject  appears  to  have  been  left,  as  is 
usually  done,  for  the  action  of  the  legislature,  to  be  modified 
according  to  circumstances ;  and  the  prosecution  against  Stebbins 
was  not  founded  on  the  provisions  contained  in  the  constitu- 
tion, but  was  under  the  law  of  1827  above  mentioned,  prohibiting 
the  issuing  of  bank-notes.  We  are  fully  satisfied,  that  the  state 
never  intended,  by  its  constitution,  to  interfere  with  the  right  of 
purchasing  or  selling  bills  of  exchange ;  and  that  the  opinion  of 
the  court  does  not  refer  to  transactions  of  that  description,  when 
it  speaks  of  banking  as  a  franchise. 


FOREIGN    CORPORATIONS. 


279 


The  question  then  recurs — Does  the  poHcy  of  Alabama  deny 
to  the  corporations  of  other  states  the  orchnary  comity  l)et\veen 
nations?  or  does  it  permit  such  a  corjX)ration  to  make  those  con- 
tracts which  from  their  nature  and  subject-matter,  are  consistent 
with  its  pohcy,  and  are  allowed  to  individuals?  In  making  such 
contracts,  a  corporation,  no  doubt,  exercises  its  corporate  fran- 
chise. But  it  must  do  this,  whenever  it  acts  as  a  corporation,  for 
its  existence  is  a  franchise.  Now,  it  has  been  held  in  the  court 
of  Alabama  itself,  in  2  Stew.  147,  that  the  corporation  of  another 
state  may  sue  in  its  courts ;  and  the  decision  is  put  directly  on  the 
ground  of  national  comity.  The  state,  therefore,  has  not  merely 
acquiesced  by  silence,  but  her  jurlicial  tribunals  have  declared  the 
adoption,  of  the  law  of  international  comity,  in  the  case  of  a  suit. 
We  have  already  shown,  that  the  comity  of  suit  brings  with  it 
the  comity  of  contract;  and  where  the  one  is  expressly  adopted 
by  its  courts,  the  other  must  also  be  presumed,  according  to  the 
usages  of  nations,  unless  the  contrary  can  be  shown. 

The  cases  cited  from  7  Wen.  276,  and  from  2  Rand.  465, 
cannot  influence  the  decision  in  the  case  before  us.  The  decisions 
of  these  two  state  courts  were  founded  upon  the  legislation  of 
their  respective  states,  which  was  sufftciently  exphcit  to  enable 
their  judicial  tribunals  to  pronounce  judgment  on  their  line  of 
policy.  But  because  two  states  have  adopted  a  particular  policy, 
in  relation  to  the  banking  corporation  of  other  states,  we  cannot 
infer,  that  the  same  rule  prevails  in  all  of  the  other  states.  Each 
state  must  decide  for  itself.  And  it  will  be  remembered,  that  it 
is  not  the  state  of  Alabama  which  appears  here  to  complain  of  an 
infraction  of  its  policy.  Neither  the  state,  nor  any  of  its  consti- 
tuted authorities,  have  interferred  in  this  controversy.  The  objec- 
tion is  taken  by  persons  who  were  parties  to  those  contracts ;  and 
who  participated  in  the  transactions  which  are  now  alleged  to 
have  been  in  violation  of  the  laws  of  the  state. 

It  is  but  justice  to  all  the  parties  concerned,  to  suppose  that 
these  contracts  were  made  in  good  faith,  and  that  no  suspicion 
was  entertained  by  either  of  them,  that  these  engagements  could 
not  be  enforced.  Money  was  paid  on  them  by  one  party,  and 
received  by  the  other.  And  when  we  see  men  dealing  with  one 
another  openly  in  this  manner,  and  making  contracts  to  a  large 
amount,  we  can  hardly  doubt,  as  to  what  was  the  generally-re- 
ceived opinion  in  .Alabama,  at  that  time,  in  relation,  to  the  right 
of  the  plaintififs  to  make  such  contracts.  Everything  now  urged 
as  proof  of  her  policy,  was  eciuaily  pulilic  and  well  known,  when 


280  PRIVAXr,    INTERNATIONAL    LAW. 

these  bills  were  negotiated.     And  when  a  court  is  called  on  to 
declare  contracts  thus  made  to  be  void,  upon  the  ground  that  they 
conflict  with  the  policy  of  the  state ;  the  line  of  that  policy  should 
be  very  clear  and  distinct,  to  justify  the  court  in  sustaining  the 
defence.     Nothing  can  be  more  vague  and  indefinite  than  that 
now  insisted  on  as  the  policy  of  Alabama.    It  rests  altogether  on 
speculative  reasoning  as  to  her  supposed  interests;  and   is  not 
supported  by  any  positive  legislation.     There  is  no  law  of  the 
state  which  attempts  to  define  the  rights  of  foreign  corporations. 
We,  however,  do  not  mean  to  say,  that  there  are  not  many 
subjects  upon  which  the  policy  of  the  several  states  is  abundantly 
evident,  from  the  nature  of  their  institutions,  and  the  general  scope 
of  their  legislation ;  and  which  do  not  need  the  aid  of  a  positive 
and  special  law  to  guide  the  decisions  of  the  courts.     When  the 
policy  of  a  state  is  thus  manifest,  the  courts  of  the  United  States 
would  be  bound  to  notice  it,  as  a  part  of  its  code  of  laws ;  and  to 
declare  all  contracts  in  the  state,  repugnant  to  it,  to  be  illegal  and 
void.     Nor  do  we  mean  to  say,  whether  there  may  not  be  some 
rights  under  the  constitution  of  the  United  States,  which  a  cor- 
poration might  claim,  under  peculiar  circumstances,  in  a  state 
other  than  that  in  which  it  was  chartered.     The  reasoning,  as 
well  as  the  judgment  of  the  court,  is  applied  to  the  matter  before 
us ;  and  we  think  the  contracts  in  question  were  valid,  and  that  the 
defence  relied  on  by  the  defendants  cannot  be  sustained.     The 
judgment  of  the  circuit  court  in  these  cases  must,  therefore,  be 
reversed,  with  costs. -^ 


^'Foreign  Corporation  Defined. — A  foreign  corporation  is  one  created 

by  or  under  the  Inws  of  another  state  or  country.  Although  a  collection 
of  individuols,  it  has  a  separate  and  distinct  individuality,  and  in  law  it  is 
considered  a   person,  an   artificial   person. 

A  corporation  is  a  "citizen"  of  the  state  where  it  was  created.  Bal- 
timore &  O.  R.  Co.  V.  Hai'is,  12  W'lll.  65;  Shazi'  v.  Mining  Co.,  I45  U.  S. 
444,  12  Sup.  Ct.  9S^.  A  corporation  is  to  be  deemed  a  "citizen"  within  the 
meaning  of  the  aVts  of  Congress  defining  the  jurisdiction  of  the  federal 
courts.  People  v.  Utica  Ins.  Co.,  15  Johns.  (N.  Y.)  358:  Denny  v.  Scliram. 
6  Wash.  134.  32  Pac.  1002.  A  corporation  is  not  a  "citizen"  within  the 
meaning  of  the  provision  of  the  federal  constitution  that  "the  citizeris  of 
each  state  shall  be  entitled  to  all  the  privileges  and  immunities  of  citizens 
in  the  several  states."  Paul  v.  Virginia,  8  J  Vail.  168:  Blake  v.  McChing, 
172  U.  S.  239;  Ducat  V.  City  of  Chicago,  48  III.  172;  Tat  em  v.  Wright,  23 

N.  I.  L.  429.  .     . 

A  corporation  is  not  a  person  within  the  meaning  of  the  constitutional 
provision  that  no  state  shall  deny  to  any  "person"  within  its  jurisdiction 
the  equal  protection  of  its  laws.    Pembina  Mining  Co.  v.  Penn.,  125  V.  S. 

181.  8  .Sup.  Ct.  737-  ,  .  u     •.  .  •  . 

Extra-terratorial  Powers.— A  corporation  can,  by  its  agents,  go  into 
another  state  and  carry  on  business  there  providing  it  keeps  within  the 


FOREIGN    CORPORATIONS.  281 

powers  conferred  by  its  charter,  and  such  business  is  not  contrary  to  the 
laws  or  policy  of  the  state  where  it  attempts  to  carry  on  business.  Koine- 
bee  V.  Augusta  Ins.  Co.,  6  Gray  (Mass.)  380;  Santa  Clara  Academy  v. 
Sullii'an,  116  III.  375,  6  N.  IS.  183;  Lancaster  v.  Improvement  Co.,  140 
N.  V.  576,  35  N.  U.  964;  Coivell  V.  Springs.  100  U.  S.  59;  Thompson  v. 
Waters,  23  Mich.  214. 

In  order  to  exclude  the  foreign  corporation,  there  must  be  some 
express  prohibition  against  such  corporation,  or  else  the  general  policy  of 
the  laws  must  be  against  it.  Demarest  v.  Flack.  128  N.  Y.  203,  28  N.  E. 
643;  Lancaster  v.  Improvement  Co..  140  N.  Y.  376,  33  N.  E.  964;  Bard  v. 
Poole.  12  N.  Y.  493:  Coi^'cll  v.  Springs,  lOO  U.  S.  39. 

A  foreign  corporation  may  not  do  an  act  for  doing  which  a  special 
franchise  is  required.  Dodge  v.  Council  Bluffs.  37  lon'a  360;  Middle 
Bridge  Co.  v.  Marks.  26  Me.  326. 

It  may  not  do  an  act  contrary  to  the  public  policy  of  the  state.  Amer- 
ican Soc.  V.  Gartrell,  23  Ga.  448. 

Public  policy  is  that  principle  of  the  law  which  holds  that  no  person 
can  lawfully  do  that  which  has  a  tendency  to  be  injurious  to  the  public 
or  against  the  public  good.  It  is  a  variable  quantity,  and  changes  with 
the  habits,  capacities,  and  opportunities  of  the  public. 

Public  policy  is  manifested  by  public  acts,  legislative  and  judicial,  and 
not  by  private  opinion,  however  eminent.  Giant  Pou'der  Co.  v.  Oregon 
Ry..  42  Fed.  Rep.  470.  The  exercise  of  comity  in  admitting  or  restraining 
the  application  of  the  laws  of  another  country  must  rest  in  sound  judicial 
discretion,  dictated  by  the  circumstances  of  the  case.  Edgcrly  v.  Bush, 
81  N.  Y.  199. 

The  powers  of  a  foreign  corporation  are  determined  by  its  charter, 
the  law  of  its  domicil,  the  law  of  the  place  where  it  attempts  to  do  business, 
and  comity,  and  all  persons  who  deal  with  it  must  take  notice  of  the  lim- 
itations upon  its  charter.  Canada  Ry.  Co.  v.  Gebhard,  109  U.  S.  327,  j  Sup. 
Ct.  363:  Rue  V.  Raih^ay  Co.,  74  Tex.  474,  8  S.  IV.  333;  Rtinyan  v.  Cosier, 
14  Pet.  122. 

Power  to  Exclude  Corporations. — A  state  or  country  may  exclude 
foreign  corporations  altogether,  or  it  may  impose  such  terms  as  it  chooses 
as  a  condition  of  allowing  them  to  carry  on  business.  The  whole  matter 
rests  in  the  discretion  of  the  state  or  country.  Paul  v.  Virginia,  8  fVall. 
168:  Liverpool  Ins.  Co.  7'.  Massachusetts,  10  Wall.  366.  If  a  foreign  cor- 
poration carries  on  business  in  a  state  without  complying  with  the  con- 
ditions imposed  by  the  state,  such  contracts  of  the  corporation  are  abso- 
lutely void.  In  re  Comstock,  3  Sarvyer  218;  Reliance  Ins.  Co.  v.  Saziyer, 
160  Mass.  413.  36  N.  E.  39:  Cincinnati  v.  Rosenthal.  33  III.  83.  Some 
courts  hold  that  a  non-compliance  with  state  laws  renders  the  corporation 
liable  to  expulsion,  but  permits  the  contracts  to  stand.  Washburn  .Mill 
Co.  •.-.  Bartlctt,  3  N.  D.  138,  54  N.  W.  344;  Wright  v.  Lee,  4  S.  D.  237,  35 
N.  W.  931- 

What  Constitutes  "Doing  Business"  in  the  State. — If  a  foreigji  cor- 
poration does  any  substantial  part  of  its  business  in  the  state,  it  is  said 
to  be  doing  business  in  the  state.  A  single  act  of  the  foreign  corporation, 
if  the  act  is  of  its  ordinary  business,  constitutes  doing  business  in  the 
state.  People  v.  Wemple,  131  N.  Y.  64.  29  N.  E.  1002:  Ginn  v.  Security 
Co..  oj  Ala.  133.  8  South.  Rep.  388.  The  Supreme  Court  of  the  United 
States  has  held  that  a  single  act  is  not  "doing  business"  in  the  state. 
Cooper  z:  Manufacturing  Co.,  113  U.  S.  727. 

Actions  by  and  Against  Foreign  Corporations. — As  a  matter  of  comity, 
a  corporal  inn  may  sue  iii  another  state  or  country.  But  to  sue  a  foreign 
corporation  certain  conditions  must  exist :  First,  it  nnist  appear  that  the 
corporation  was  carrying  on  business  in  the  state;   second,  that  the  busi- 


282  PRIVATE    INTERNATIONAL    LAW. 

ness  was  managed  by  some  agent  of  the  corporation  ;  third,  the  existence 
of  some  local  law  making  such  corporation  amenable  to  suit  there  as  a 
condition,  express  or  implied,  of  doing  business  in  the  state.  United 
States  V.  Am.  Bell  Tel.  Co.,  2g  Fed.  Rep.  17.  In  a  recent  case,  it  has  been 
held  that  service  may  be  made  upon  its  regularly  appointed  agents,  even 
in  the  absence  of  a  state  statute  conferring  such  authority.  Barrow  v. 
Kane,  170  U.  S.  100;  Mutual  Life  Ins.  v.  Spratley,  172  U  S.  602. 


GUARDIAN  AND  WARD. 

IN  RE  STOCKMAN,  1S88. 
[71  Mich.  180.] 

1.  Guardian  of  the  Person  of  the         3-    Who  May  be  Appointed  Guard- 

Ward,  ian. 

2.  Testamentary  and   Statutory  4.     Discretion  of  the  Court. 

Guardians.  5.     Rights  of  Foreign  Guardians. 

Sherwood,  C.  J.  Lucile  Stockman  is  now  nine  years  of  age, 
and  resides  with  her  maternal  grandparents  in  Port  Huron,  who 
are  her  guardians  in  this  state,  having  received  their  appointment 
as  such  on  October  19,  1885.  The  paternal  grandparents  reside 
in  Washington,  D.  C.,  and  were  duly  appointed  testamentary 
guardians  for  Lucile  in  that  city  on  September  4,  1885.  The 
child's  father  and  mother  are  both  dead.  The  testamentary 
guardians  are  the  petitioners  in  this  case,  and  they  seek  to  recover 
by  the  writ  of  habeas  corpus  this  infant  girl  from  the  Michigan 
guardians.  Mrs.  Stockman,  the  mother  of  Lucile,  died  in  the 
city  of  Washington  on  November  24,  1879,  and  Hugh  R.  Stock- 
man, the  father,  died  in  the  same  city  on  August  23,  1885. 

These  parents  were  married  in  April,  1877,  at  Port  Huron^ 
Mrs.  Stockman  being  only  about  16  years  of  age  when  married. 
They  remained  in  Port  Huron  until  some  time  in  July,  1877- 
There  were  some  unpleasant  things  occurred  in  the  manner  the 
husband  brought  about  the  marriage,  and  it  only  need  be  said 
they  were  of  a  character  not  calculated  to  greatly  increase  the 
estimate  wiiich  would  most  likely  be  accorded  to  him  by  a  well- 
ordered  and  virtuous  community.  The  wife's  parents  were  a 
well-to-do  and  respectable  family,  who  had  resided  in  Port  Huron 
more  than  20  years,  reputable  people  in  good  standing.  While 
in  Port  Huron  the  newly-married  couple  boarded  at  the  LIuron 
House,  and  Mrs.  Stockman  was  allowed  to  visit  her  mother  but 
once,  and  then  for  the  purpose  of  getting  her  trunk  before  they 
left  the  citv,  and  the  mother  never  saw  Mrs.  Stockman  again  but 


GUARDIAN    AND    WARD.  283 

once  until  a  few  hours  before  she  died.  They  Hved  during  their 
marriage  in  Georgia  and  in  Washington. 

After  the  birth  of  the  child,  Luciie,  which  occurred  while 
they  were  in  Georgia,  the  mother  was  allowed  to  come  to  Port 
Huron  for  a  few  weeks  in  July  and  August,  1879,  ^"^  then  le- 
turned  to  ^^''ashington,  where  she  died.  Her  mother  was  tele- 
graphed to  go  to  Washington  about  48  hours  before  Mrs.  Stock- 
man died,  and  she  was  permitted  to  have  the  company  of  Mrs. 
Shaw,  her  mother,  about  24  hours  before  she  passed  away.  Be- 
fore she  died,  Mrs.  Stockman  asked  her  husband  to  allow  her 
mother,  Mrs.  Shaw,  to  take  Lucile  and  keep  her,  and  Mr.  Stock- 
man oromised  her  that  he  would  do  so.  And  after  the  funeral 
he  told  jNIrs.  Shaw  of  the  request  his  wife  had  made,  and  the 
promise  he  gave  her,  and  then  and  there  urged  Mrs.  Shaw  to  take 
the  child,  and  do  as  his  wife  requested ;  and  upon  her  suggestion 
that  she  would  be  willing  to  take  her,  and  bring  her  up,  but  was 
afraid  he  might  afterwards  change  his  mind,  and  take  the  child 
from  her,  he  affirmed  he  would  not,  saying: 

"Oh,  no,  mother.  You  may  have  no  fear.  You  take  the  child 
and  bring  her  up  pure  and  virtuous,  like  her  mother,  and  that  is 
all  I  ask." 

Mrs.  Shaw  then  promised  him  she  would  take  her  as  re- 
quested by  her  daughter  and  him,  and  bring  up  the  child  as  one 
of  her  own. 

Mr.  Stockman  seemed  very  poor  at  this  time.  The  only  home 
he  had  ever  furnished  for  his  wife  and  child  was  in  the  family 
of  his  father  and  mother,  and  at  their  house ;  and  after  paying 
sundry  bills  for  medicine  for  Mrs.  Stockman  before  she  died,  and 
lending  him  $50  to  help  pay  his  wife's  funeral  expenses,  she  took 
the  child  Lucile.  and  brought  her  to  her  home  in  Port  Huron, 
where  she  and  her  husband  have  cared  for,  supported,  maintained, 
and  educated  her  ever  since. 

When  Mrs.  Shaw  took  the  child  she  was  about  17  months 
old,  and,  the  evidence  shows,  poor  and  sickly.  She  is  now- 
healthy,  and  enjoying  her  home  and  the  family  of  her  grandpar- 
ents, where  there  are  several  children  associates.  She  is  also  re- 
ceiving such  Christian  education  and  other  advantages  as  a  large 
and  prosperous  Michigan  city  affords ;  and  the  testimony  is  to  the 
effect  tl\at  she  desires  to  remain  with  her  grandparents  in  Michi- 
gan, where  she  is  contented  and  happy,  and  does  not  want  to  go 
and  live  with  her  paternal  grandparents  in  Washington,  and  the 
maternal  grandparents  are  anxious  to  have  her  remain  with  them. 


284  PRIVATE    INTERNATIONAL    LAW. 

and  are  willing-  to  maintain,  educate,  and  support  her  from  their 
■own  means,  and  at  their  own  expense. 

In  the  month  of  August,  1882,  and  after  the  child  had  heen  at 
Port  Huron  about  3  years,  Mr.  Stockman  visited  his  daughter 
at  Mr.  and  Mrs.  Shaw's,  and,  after  being  there  a  few  days,  said 
he  wanted  to  take  her  to  Washington  with  him  to  spend  the  win- 
ter, and  Mrs.  Shaw  could  have  her  again  in  the  spring,  and  was 
allowed  to  take  her  under  his  promise  that  the  grandmother  could 
have  her  again  in  the  spring.  Mrs.  Shaw  went  for  her  in  the 
month  of  .April,  1883,  when  Mr.  Stockman  made  trouble  in  get- 
ting her,  and  finally  would  not  allow  Mrs.  Shaw  to  bring  her  away 
unless  she  would  sign  a  writing,  agreeing  to  return  the  child  to 
him  whenever  he  should  call  for  her.  Lucile  was  at  the  time  not 
Avell,  and  these  conditions,  demanded  of  Mrs.  Shaw  before  she 
could  gain  possession  of  the  child,  greatly  embarrassed  her,  and, 
feeling  that  she  could  not  leave  her  in  Washington,  she  signed 
an  instrum.ent  purporting  to  be  of  the  effect  stated.  She  then 
took  the  little  girl  and  returned  to  Port  Huron  with  her.  Mrs. 
Shaw  avers  that  she  was  compelled  to  sign  said  written  agree- 
ment before  she  could  get  away  the  child,  who  was  then  sick,  and, 
fearing  she  might  die  if  allowed  to  remain  there,  she  was  ready 
to  do  almost  anything  to  get  her  away,  and  she  was  thus  com- 
pelled, at  the  risk,  she  believes,  of  the  life  of  the  child,  and 
against  her  will,  to  sign  said  written  instrument. 

After  their  return  to  Port  Huron.  Lucile  soon  recovered  her 
health,  and  she  was  permitted  to  remain  undisturbed  with  Mrs. 
Shaw  until  on  or  about  September  18.  1883,  when  Mr.  Stockman 
came  to  the  house  of  Mrs.  Shaw,  in  Port  Huron,  and  unceremo- 
niouslv  took  the  child  away  with  the  avowed  purpose  of  taking 
her  to  Washington.  This  he  was  not  allowed  to  do  by  Mr.  Shaw, 
who  found  him  with  the  child  in  the  city,  making  preparations  to 
leave  with  her.  .Shaw  took  her  from  Mr.  Stockman,  and  went 
home  vvith  her.  Mr.  Stockman  thereupon  applied  to  the  circuit 
court  for  the  county  of  St.  Clair  for  a  writ  of  habeans  corpus  to 
recover  the  child.  Mr.  and  Mrs.  Shaw  appeared,  and  filed  their 
answer,  contesting  his  right  to  Lucile  upon  the  following  grounds : 

1.  That*  bv  reason  of  the  request  of  the  dying  mother,  and 
consummated  after  her  death  by  the  agreement  of  Mr.  Stockman 
with  Mrs.  Shaw,  that  she  should  have  the  care  and  custody  of  the 
child  during  her  infancy,  she  was  entitled  to  take  her  away. 

2.  That  Mr.  Stockman  was  an  unfit  person  to  have  the  care, 
companionship,  custody,  or  education  of  the  child;  that  he  was 


GUARDIAN    AND    WARD. 


285 


intemperate  in  his  habiis ;  habitually  used  intoxicating  liquor ; 
that  he  had  an  ungovernable  temper,  and  could  not  control  his 
passions,  and  was  a  man  of  improper  and  immoral  habits. 

3.  That  he  was  extremely  cross  and  cruel  in  his  conduct  to- 
wards Lucile,  and  without  any  sufficient  cause  would  frequently 
inflict  upon  her  severe  blows,  and  cruel  and  improper  punishment. 

4.  That  he  improperly  treated  the  child  when  sick ;  compelled 
and  forced  her  to  take  medicine  of  his  own  preparation,  and  con- 
trary to  the  advice  of  physicians. 

5.  That  he  held  improper  relations  and  intercourse  with  bad 
women,  an.d  allowed  them  in  his  own  rooms,  in  the  presence  of 
Lucile ;  and  that  he  is  financially  unable  to  support  the  child ;  that 
he  had  no  home  of  his  own,  was  out  of  health,  and  was  out  of 
business. 

The  circuit  judge  ordered  the  case  tried  before  a  jury,  and 
upon  the  first  trial  the  jury  disagreed,  and  upon  the  second  trial, 
which  occurred  about  a  month  thereafter,  the  jury  rendered  a 
verdict  that  Mr.  and  Mrs.  Shaw  should  retain  the  custody  of  the 
child.  Tliis  verdict  was  afterwards  sought  to  be  set  aside  in  the 
circuit  court,  but  the  motion  was  denied  by  the  circuit  judge  on 
May  27,  1884. 

On  June  23,  1884,  Mr.  Stockman  filed  his  petition  in  this 
Court,  and  obtained  a  \vrit  of  liabcas  corpus  to  obtain  his  daugh- 
ter. The  application  was  substantially  upon  the  same  grounds 
as  had  been  urged  in  the  circuit  court,  and  was  heard  upon  the 
same  testimony,  with  some  unimportant  additions,  in  this  Court 
on  October  18,  1884.  The  Court,  being  equally  divided  m  opin- 
ion as  to  what  should  be  done  in  tlie  premises,  caused  to  be  entered 
the  following  order  on  January  30,  1885 : 

*Tn  this  case,  the  Court  being  equally  divided  in  opinion  as 
to  the  judgment  that  shnidd  be  entered,  the  clerk  is  directed  to 
make  an  entry  to  that  efifect,  and  the  writ  is  dismissed  for  that 
caub.e.  and  without  any  decision  tipon  the  rights  of  the  parties, 
and  without  prejudice  either  to  any  existing  right  or  adjudica- 
tion, or  to  any  future  remedy." 

Here  the  matter  was  allowed  to  rest  until  Mr.  Stockman 
died,  in  August,  1885.  Previous  to  his  death,  which  occurred  at 
his  father's  in  the  city  of  Washington,  and  on  February  20,  T885, 
he  made  a  last  will,  in  which  he  appointed  iiis  father  and  motiier 
guardians  of  T.ucile.  They  qualified,  and  letters  of  testamentary 
guardianship  were  duly  issued  to  ther^  in  the  orphans'  court  of 
the  District  of  Columbia  on  September  4,   1885.     In  and  l)y  the 


286  PRIVATE    INTERNATIONAL    LAW. 

will  the  testator  directs  his  guardians  tc  obtain  the  legal  control  of 
Lncile,  and,  if  necessary  to  that  end,  they  are  directed  to  use  all 
his  property ;  and  if  they  do  not  succeed,  then  he  gives  his  prop- 
erty to  his  father  and  mother,  if  living,  and,  if  not,  he  gives  it  in 
equal  shares  to  his  brother  and  sisters,  and  recites  in  his  will  that 
Mr.  and  Mrs.  Shaw  had  committed  perjury  in  their  endeavors 
to  retain  the  child. 

In  pursuance  of  and  in  accordance  with  the  requirements  of 
■this  will.  Mr.  Andrew  H.  Stockman  and  Anna  B.  Stockman,  his 
wife,  the  father  and- mother  of  the  testator,  applied  for  and  ob- 
tained a  writ  of  habeas  corpus  from  this  Court  to  obtain  the  cus- 
tody of  their  testamentary  ward,  Lucile,  on  February  8,  1887. 

The  petition  for  the  writ  does  not  vary  materially  in  its  state- 
ment of  the  facts  from  those  contained  in  the  other  application, 
except,  in  addition  thereto,  it  states  that  Mr.  and  Mrs:  Shaw  re- 
fused to  deliver  up  Lucile  to  the  testamentary  guardians  when 
requested ;  and  that  at  the  time  the  testator  died  a  large  sum  of 
money  was  due  him  for  military  service,  and  which  now  belongs 
to  Lucile ;  and  that  he  had  some  personal  property  besides,  all  of 
•which  the  testamentary  guardians  had  secured  and  then  had ;  and 
that,  under  the  decision  of  the  pension  office,  all  of  the  pension 
moneys  to  which  Lucile  is  entitled  on  account  of  the  service  of 
her  father  are  now  being  paid  to  the  testamentary  guardians ;  that 
such  pension  monev  and  personal  estate  are  sufficient  to  support 
the  ward ;  and,  further,  that  they  are  able,  and  have  property 
enough,  to  stipport  her,  if  necessary,  aside  from  the  pension 
monev ;  and  that  the  respondents,  Mr.  and  Mrs.  Shaw,  have 
changed  the  name  of  Lucile  from  Stockman  to  Shaw,  for  the  pur- 
pose of  preventing  identification,  and  have  had  her  christened  by 
that  name.  • 

The  respondents  file  their  answer  to  the  petition,  which  is  in 
substance  the  same  as  that  made  to  the  other  writs  issued,  with 
the  further  statements  that  the  said  Anna  B.  Stockman  allowed 
the  deceased  in  his  life-time  to  live  and  cohabit  at  her  house  with 
a  harlot.  They  deny  that  they  have  changed,  or  attempted  to 
change,  the  name  of  the  child,  and  aver  that  they  are  Lucile's 
•duly-appointed  guardians  in  this  State.  The  answer  then  pro- 
,ceeds  as  follows : 

"These  respondents  further  state,  the  said  Francis  H.  Shaw 
upon  information  and  belief,  and  the  said  Marietta  H.  Shaw  from 
her  knowledge  acquired  as  aforesaid,  that  the  peititioners  are  unfit 
persons  to  have  the  care  and  custody  of  the  little  girl  Lucile 


GUARDIAN    AND    WARD.  287 

Stockman,  and  that  In-  reason  of  the  great  change  that  would  take 
place  in  her  mode  of  living,  and  by  reason  of  the  great  cruelty 
which  would  be  practiced  towards  the  said  infant  by  the  said 
Anna  B.  Stockman,  thev  fear  that  her  life  would  be  in  dancr.er. 
and  that  she  would  live  but  a  short  time ;  and  upon  inforir.ation 
and  belief  they  state  that  the  said  petitioners  are  persons  without 
any  moral  restraint  whatever ;  and  that  in  matters  of  religion  they 
are  without  any  attachment  to  any  Christian  or  moral  community 
whatevei-:  and  that  their  surroundings  and  education  would  taint 
and  destroy  the  good  moral  character  of  said  infant  Lucile ;  and 
they  ask  the  protection  of  this  Court  for  such  child ;  and  that  the 
facts  and  circumstances  of  the  petition,  and  this  answer,  may  be 
inquired  into;  and  that  by  the  judgment  of  this  Court  the  prayer 
of  the  petitioners  may  be  denied. 

"These  respondents  further  state,  upon  information  and  be- 
lief, that  the  only  object  and  purpose  which  the  petitioners  have 
in  obtaining  the  custody  of  said  child  is  to  enable  them  to  have 
some  pretext  for  expending  whatever  money  the  said  infant  may 
be  entitled  to  under  the  provisions  of  the  act  of  Congress  of  the 
United  States  and  under  the  provisions  of  the  will,  as  set  forth 
in  said  petition  ;  and  they  state,  upon  information  and  belief,  that 
there  is  no  adequate  security  filed  in  any  court  in  Washington  to 
protect  the  estate  of  said  infant  from  loss  or  speculation  in  case 
her  custody  and  control  should  be  transferred  to  the  petitioners; 
and  they  refer  to  the  affidavit  hereto  attached  as  a  part  of  this 
answer." 

The  respondents  also  submit  all  the  testimony  upon  the  for- 
mer trial,  when  the  matter  was  before  the  jury.  Such  is  substan- 
tially the  issue  as  made  up  before  us  now  for  consideration. 

The  superior  rights  of  a  father  to  his  child  to  those  of  the 
grandparents,  all  things  else  being  equal,  are  no  longer  before  us. 
It  has  now  come  to  the  single  question  and  consideration  whether 
the  paternal  or  maternal  grandparents  shall  have  the  care  and  cus- 
tody. So  far  as  the  desires  of  the  parents  are  concerned,  the 
father's  last  wish  was  that  his  p.^rents  might  have  such  care.  and. 
so  far  as  the  mother's  feelings  in  the  matter  is  concerned,  it  was 
her  dying  request  that  her  parents  might  have  the  care  and  train- 
ing of  her  infant  daughter,  and  at  that  time  such  were  his  wishes 
in  the  matter.  T  have  reviewed  all  the  evidence  in  this  case,  and, 
after  applying  to  it  all  the  knowledge  and  experience  I  possess,  I 
must  say  that  at  this  time,  when  he  wac  stirred  up  by  all  the  feel- 
ings of  his  better  nature,  and  they  had  so  far  got  control  of  his 


288  PRIVATE    INTERNATIONAL    LAW. 

passions  and  prejudices  as  to  allow  his  reason,  his  judgment,  and 
affections  to  dictate  \Yliat,  under  all  the  circumstances,  would  be 
best  for  the  future  welfare  of  his  little  child,  in  his  wishes  then 
expressed  and  the  promise  he  gave  to  his  dying  wife,  and  the  re- 
quest he  made  of  her  mother  that  she  would — 

"Take  the  child  and  bring  her  up  pure  and  virtuous,  like  her 
mother,"  saying,  "that  is  all  I  ask," — 

He  gave  expression  to  the  true  sentiments  of  his  heart,  ap- 
proved by  his  reason  and  his  judgment;  and  it  was  the  wisest  and 
best  conclusion  he  could  have  possibly  reached,  and  in  my  opinion 
it  ought  not  now  to  be  disturbed. 

The  child  is  a  girl.  That  mother  knew  better  than  any  one 
else  of  its  care  and  many  wants  and  requirements  through  the 
period  of  its  infancy  and  childhood,  during  a  motherless  future, 
and  she  knew  that  no  one  else  could  have  the  patience  and  afifec- 
tion  for  the  little  one,  and  minister  those  wants,  to  the  extent 
of  her  own  mother.  Others  might  be  found  to  take  the  charge 
but  none  could  do  it  so  well.  There  is  no  question  but  that  Mrs. 
Shaw  and  her  husband  are  competent,  able,  and  well  qualified 
for  the  duties  the  guardianship  of  this  granddaughter  imposes 
upon  them,  and  it  is  a  pleasure  to  them  to  discharge  that  duty. 
The  child  likes  them,  and  is  contented  and  happy  with  them. 
Why  should  this  Court  send  her  to  a  home  where  she  does  not 
wish  to  go,  to  friends  she  does  not  know,  who  have  never  ex- 
pressed a  desire  for  her,  save  to  gratify  the  spleen  and  prejudice 
of  a  father,  who  by  his  will  left  to  his  daughter  as  her  principal 
legacy  the  hatred  he  bore  towards  her  mother's  parents,  to  a  cli- 
mate not  congenial  to  her  health,  and  which  brought  her  mother 
to  a  premature  grave? 

It  is  claimed  by  counsel  for  the  Stockmans  that  the  law  is 
inexorable,  and  requires  this  to  be  done.  I  cannot  agree  with 
counsel  upon  this  subject.  Courts  have  a  general  superintending 
power  over  all  infants,  and  the  primary  guardianship  of  the  parent 
over  his  child  lasts  no  longer  than  he  is  found  to  be  competent, 
and  discharges  his  duty  which  nature  has  laid  upon  him.  properly; 
and  when  he  fails  to  do  this,  the  proper  court  may  interfere,  and 
charge  another  with  the  discharge  of  this  duty.  The  good  of 
society  and  the  welfare  of  the  State  require  this,  and  can  never 
require  less.  Primarily,  the  court  is  the  guardian  of  all  orphan 
children,  and  will  give  the  proper  directions  as  to  their  care  and 
support  until  such  time  as  a  guardian  shall  be  appointed ;  and  it  is 
then  its  duty  to  see  to  it  that  the  dutie^  of  the  trust  are  properly 
discharged. 


GUARDIAN    AND    WARD. 


289 


Guardians  for  infants  may  1)e  appointed  by  the  last  will  of 
the  parent  instead  of  by  the  court,  in  which  case  the  court  will 
recognize  their  authority  and  their  control  of  the  ward  so  long  as 
it  is  right  and  proper,  and  for  the  best  interest  of  the  ward.  The 
powers  of  a  testamentary  guardian  are  just  the  same  precisely  as 
are  those  of  a  guardian  appointed  by  the  court,  and  are  allowed 
to  be  exercised  or  withheld  for  the  same  reasons.  Who  shall  or 
may  be  appointed  guardian  is  within  the  discretion  of  the  court. 
Relatives  of  the  infant  are  usually  selected,  and  those  nearest  of 
kin  are  usually  preferred  when  otherwise  competent,  and  as  be- 
tween those  entitled  the  question  to  be  determined  in  making  the 
selection  is,  and  always  should  be.  what  will  be  for  the  best  in- 
terest of  the  ward  under  all  the  circumstances?  It  should  control 
everything  else. 

In  looking  into  the  circumstances  in  this  case  it  seems  to  me 
but  one  conclusion  can  be  reached,  and  that  is  that  this  child 
should  be  permitted  to  remain  where  she  now  is,  with  her  mater- 
nal grandparents.  The  testimony  shows  they  are  doing  all  that 
is  necessary  for  her  enjoyment,  her  education,  her  health,  her 
comfort,  and  welfare,  and  without  expense  to  the  ward  or  her 
estate.  Her  acquaintances,  her  associates,  her  friends,  are  all  there, 
and  she  has  all  the  advantages  for  moral  and  intellectual  culture, 
with  the  accomplishments  to  be  acquired  in  the  best  society ;  and 
were  the  change  made  as  desired  by  petitioners,  we  are  not  sure 
she  could  have  the  benefit  of  all  these.  And  I  feel  quite  certain 
she  would  not.  She  is  just  at  this  time  of  an  age  when  she  needs 
the  guardianship  of  the  most  exemplary  and  circumspect.  She 
has  now  arrived  at  an  age  when  impressions  will  become  most 
lasting,  and  it  is  of  the  greatest  importance  to  her  future  welfare 
that  they  should  be  correct.  I  do  not  think  this  Court  would  be 
justified  in  trying  the  experiment  of  transferring  her  custody  to 
the  grandparents  at  Washington,  even  though  they  were  equally 
competent  with  those  at  Port  Huron ;  a  fact,  how^ever.  I  regret  to 
say.  I  have  been  unable  to  find  from  the  testimony.  I  am  not 
prepared  to  give  my  assent  to  an  experiment  fraught  with  the 
danger  of  destroying  the  happiness  of  this  innocent  young  girl's 
future  life.  There  is  no  law  which  requires  this  Court  to  make 
such  a  decision,  and  justice  to  the  dead  as  well  as  to  the  living  pro- 
tests against  it. 

Mr.  and  Mrs.  Shaw  have  been  duly  appointed  guardians  of 
the  child  in  this  State.    Under  the  agreement  which  was  made  by 
the    father,   on    request   of   the   mother,    with    Mrs.    Shaw    when 
19 


290  PRIVATE     INTERNATIONAL    LAW. 

she  brought  the  child  to  Port  Huron,  that  place  became  the  child's 
residence,  and  it  was  not  changed  by  the  agreement  which  Mrs. 
Shaw  subsequently  signed  under  duress  in  Washington.  By  vir- 
tue of  the  letters  of  guardianship  the  respondents  have  also  the 
lawful  custody  of  their  ward,  and  the  testamentary  guardians 
never  had  any  right  to  such  custody,  except  that  which  comity 
gave  them,  and  which  can  never  be  properly  enforced  in  this 
State,  under  the  circumstances  appearing  in  this  case.  Laws  of 
1883,  p.  3;  Laws  of  1887.  p.  147;  How.  Stat.  §  6312;  /;/  re  Rice, 
42  Mich.  528  (4  N.  W.  Rep.  284)  ;  Johnstone  z'.  Beattie,  10  Clark 
&  F.  42;  Morrell  v.  Dickey,  i  Johns.  Ch.  153;  Kraft  z:  JVickey,  4 
Gill  &  J.  332;  Story  Confl.  Law,  §§  494-504;  Overseers  z:  Over- 
seers, 5  Cow.  527;  Riley  v.  Riley,  3  Day,  74;  Fenzvick  v.  Scar's 
Adm'rs,  i  Cranch,  259;  Whart  Confl.  Laws,  §§  261-264;  Reeve, 
Dom.  Rel.  454;  Creuse  v.  Hunter,  2  Cox,  Ch.  242;  De  Manneville 
V.  De  Manneville,  10  Ves.  52 ;  Wood  v.  Wood,  5  Paige,  596,  605 ; 
Leonard  v.  Putnam,  51  N.  H.  247;  Hubbard's  Case,  22  Alb.  Law 
J.  315;  Ex  parte  Watkins,  2  Ves.  Sr.  470;  WoodzvortJi  v.  Spring, 
4  Allen,  321 ;  Tozvnsend  v.  Kendall,  4  Minn.  412;  Boyd  v.  Glass, 
34  Ga.  253 ;  In  re  Turner,  41  Law,  J.  (Q.  B.)  142 ;  Rozve  z'.  Roive, 
28  Mich.  353;  Corrie  v.  Corrie,  42  Id.  509  (4  N.  W.  Rep.  213)  ; 
People  V.  Brozim,  35  Hun,  324;  2  Lead.  Cas.  Eq.  (White  &  T. 
Notes),  1528;  Hoch.  Inf.  §  56;  Gishzviler  v.  Dodez,  4  Ohio  St. 
615;  McLoskey  v.  Reid,  4  Bradf.  Surr.  334;  Ex  parte  Daivson, 
3  Id.  130;  Bennet  v.  Bennet,  13  N.  J.  Eq.  114;  Tyler.  Inf.  283, 
285-292;  Dumain  v.  Gzvynne,  10  Allen,  270;  /;;  re  Spoicc,  2 
Phil.  Ch.  247. 

Comity  cannot  be  considered  in  a  case  like  this,  when  the 
future  welfare"  of  the  child  is  the  vital  question  in  the  case.  The 
good  of  the  child  is  superior  to  all  other  considerations.  It  is 
the  polar  star  to  guide  to  the  conclusion  in  all  cases  of  infants, 
whether  the  question  is  raised  upon  a  writ  of  habeas  corpus  or 
in  a  court  of  chancery.  The  infant's  desire  in  determining  where 
she  shall  reside,  if  of  sufficient  age  and  uninfluenced,  is  always 
listened  to  with  interest,  and  in  this  case  we  have  it  marked  and 
most  emphatic.     She  wants  to  remain  where  she  is. 

I  think  the  duty  of  the  Court  in  this  case  is  plain  and  clear. 
I  have  no  doubt  of  Mrs.  Shaw's  right  to  the  custody  of  this  child 
under  the  contract  she  made  with  her  father  at  the  death-bed  of 
her  mother,  and  I  am  entirely  satisfied  that  she  is  now  receiving 
the  care  she  needs,  and  that  her  education  is  properly  attended  to, 
and  that  she  is  happy  in  her  home  and  surroundings,  and  that  she 


GUARDIAN    AND    WARD.  291 

never  could  be  at  Washington,  under  the  guardianship  oi  her 
paternal  grandparents. 

In  my  judgment  the  writ  should  be  denied,  with  costs,  and 
the  child  should  be  allowed  to  remain  where  she  now  is,  with  Mr. 
and  Mrs.  Shaw,  in  Port  Huron. 

Morse  and  Long,  JJ.,  concurred  with  Sherwood,  C.  J. 


LAMAR  V.  MICOU,    1884. 

[112  U.  S.  452.] 

1.  Guardian  of  the  Property  of  the       3.     What      Law      Determines      the 

Ward.  Guardian's   Liability. 

2.  Degree  of  Care  to  be  Exercised       4.     Power  of  Foreign   Guardians  to 

over  Ward's   Property.  Sue  and  be  Sued. 

This  was  an  appeal  by  the  executor  of  a  guardian  from  a 
decree  against  him  upon  a  bill  in  equity  filed  by  the  administratrix 
of  his  ward. 

The  original  bill,  filed  on  July  i,  1875,  by  Ann  C.  Sims,  a 
citizen  of  Alabama,  as  administratrix  of  Martha  M.  Sims,  in  the 
Supreme  Court  of  the  State  of  New  York,  alleged  that  on  De- 
cember II,  1855.  the  defendant's  testator,  Gazaway  B.  Lamar, 
was  duly  appointed,  by  the  surrogate  of  the  county  of  Richmond 
in  that  State,  guardian  of  the  person  and  estate  of  Martha  M. 
Sims,  an  infant  of  six  years  of  age,  then  a  resident  of  that  countv, 
and  gave  bond  as  such,  and  took  into  his  possession  and  control 
all  her  property,  being  more  than  $5,000;  that  on  October  5,  1874, 
he  died  in  New  York,  and  on  November  10,  1874,  his  will  was 
there  admitted  to  probate,  and  the  defendant,  a  citizen  of  New 
York,  was  appointed  his  executor;  and  that  he  and  his  executor 
had  neglected  to  render  any  account  of  his  guardianship  to  the 
surrogate  of  Richmond  county  or  to  any  court  having  cognizance 
thereof,  or  to  the  ward  or  her  administratrix ;  and  prayed  for  an 
account,  and  for  judgment  for  the  amount  found  to  be  due. 

The  defendant  removed  the  case  into  the  Circuit  Court  of 
the  United  States  for  the  Southern  District  of  New  York  ;  and 
there  filed  an  answer,  averring  that  in  1855,  when  Lamar  was 
appointed  guardian  of  Martha  AL  Sims,  he  was  a  citizen  of 
Georgia,  and  she  was  a  citizen  of  Alabama,  having  a  temporary 
residence  in  the  city  of  New  York;  that  in  the  spring  of  1861 
the  States  of  Georgia  and  Alabama  declared  themselves  to  have 
seceded   from  the  United   States,   and   to  constitute   members  of 


292  PRIVATE     INTERNATIONAL    LAW. 

the  so-called  Confederate  States  of  America,  whereupon  a  state  of 
war  arose  between  the  United  States  and  the  Confederate  States, 
which  continued  to  be  flagrant  for  more  than  four  years  after ; 
that  Lamar  and  Martha  M.  Sims  were  in  the  spring  of  1861 
citizens  and  residents  of  the  States  of  Georgia  and  Alabama  re- 
spectively, and  citizens  of  the  Confederate  States,  and  were 
engaged  in  aiding  and  abetting  the  State  of  Georgia  and  the  so- 
called  Confederate  States  in  their  rebellion  against  the  United 
States,  and  she  continvied  to  aid  and  abet  until  the  time  of  her 
death,  and  he  continued  to  aid  and  abet  till  January,  1865  ;  that  the 
United  States  by  various  public  acts  declared  all  his  and  her  prop- 
erty, of  any  kind,  to  be  liable  to  seizure  and  confiscation  by  the 
United  States,  and  they  both  were,  by  the  various  acts  of  Con- 
gress of  the  United  States,  outlawed  and  debarred  of  any  access 
to  any  court  of  the  United  States,  whereby  it  was  impossible  for 
Lamar  to  appear  in  the  Surrogate's  Court  of  Richmond  county  to 
settle  and  close  his  accovints  there,  and  to  be  discharged  from  his 
liability  as  guardian,  in  consequence  whereof  the  relation  of 
guardian  and  ward,  so  far  as  it  depended  upon  the  orders  of  that 
court,  ceased  and  determined ;  that,  for  the  purpose  of  saving  the 
ward's  property  from  seizure  and  confiscation  by  the  United 
States,  Lamar,  at  the  request  of  the  ward  and  of  her  natural 
guardians,  all  citizens  of  the  State  of  Alabama,  withdrew  the 
funds  belonging  to  her  from  the  city  of  New  York,  and  invested 
them  for  her  benefit  and  account  in  such  securities  as  by  the  laws 
of  the  States  of  Alabama  and  Georgia  and  of  the  Confederate 
States  he  might  lawfully  do;  that  in  1864,  upon  the  death  of 
Martha  M.  Sims,  all  her  property  vested  in  her  sister,  Ann  C. 
Sims,  as  her  next  of  kin,  and  any  accounting  of  Lamar  for  that 
property  was  to  be  made  to  her;  that  on  March  15,  1867,  at  the 
written  request  of  Ann  C.  Sims  and  of  her  natural  guardians, 
Benjamin  H.  Micou  was  appointed  her  legal  guardian  by  the  Pro- 
bate Court  of  Montgomery  County,  in  the  State  of  Alabama, 
which  was  at  that  time  her  residence,  and  Lamar  thereupon  ac- 
counted for  and  paid  over  all  property,  with  which  he  was  charge- 
able as  guardian  of  Martha  M.  Sims,  to  Micou,  as  her  guardian, 
and  received  from  him  a  full  release  therefor ;  and  that  Ann  C. 
Sims  when  she  became  of  age  ratified  and  confirmed  the  same. 
To  that  answer  the  plaintiff"  filed  a  general  replication. 

The  case  was  set  down  for  hearing  in  the  Circuit  Court  upon 
the  bill,  answer  and  replication,  and  a  statement  of  facts  agreed 
by  the  parties,  in  substance  as  follows : 


GUARDIAN    AND    WARD.  293 

On  November  23,  1850,  William  \V.  Sims,  a  citizen  of 
Georgia,  died  at  Savannah  in  that  State,  leaving  a  widow,  who 
w^as  appointed  his  administratrix,  and  two  infant  daughters, 
Martha  M.  Sims,  born  at  Savannah  on  Septem1)cr  8,  1849,  and 
Ann  C.  Sims,  born  in  Florida  on  June  i,  1851.  In  1853  the 
widow  married  the  Rev.  Richard  M.  Abercrombie,  of  Clifton,  in 
the  county  of  Richmond  and  State  of  New  York. 

On  December  11,  1855,  on  the  petition  of  Mrs.  Abercrombie, 
Gaza  way  B.  Lamar,  an  uncle  of  Mr.  Sims,  and  then  residing  at 
Brooklyn  in  the  State  of  New  York,  was  appointed  by  the  surro- 
gate of  Richmond  County  guardian  of  the  person  and  estate 
of  each  child  "until  she  shall  arrive  at  the  age  of  fourteen 
years,  and  until  another  guardian  shall  be  appointed ;"  and  gave 
bond  to  her,  with  sureties,  "to  faithfully  in  all  things  discharge 
the  duty  of  a  guardian  to  the  said  minor  according  to  law,  and 
render  a  true  and  just  account  of  all  moneys  and  other  property 
received  by  him,  and  of  the  application  thereof,  and  of  his  guard- 
ianship in  all  respects,  to  any  court  having  cognizance  thereof ;" 
and  he  immediately  received  from  Mrs.  Abercrombie  in  money 
$5,166.89  belonging  to  each  ward,  and  invested  part  of  it  in  Jan- 
uary and  April,  1856,  in  stock  of  the  Bank  of  the  Republic  at  New 
York,  and  part  of  it  in  March  and  July,  1857,  in  stock  of  the  Bank 
of  Commerce  at  Savannah,  each  of  which  was  then  paying,  and 
continued  to  pay  until  April,  1861,  good  dividends  annually,  the 
one  of  ten  and  the  other  of  eight  per  cent. 

In  1856,  several  months  after  Lamar's  appointment  as  guard- 
ian, Mr.  and  Mrs.  Abercrombie  removed  from  Clifton,  in  the 
State  of  New  York,  to  Hartford,  in  the  State  of  Connecticut,  and 
there  resided  till  her  death  in  the  spring  of  1859.  The  children 
lived  with  Mr.  and  Mrs.  Abercrombie,  Lamar  as  guardian  paying 
Mr.  Abercrombie  for  their  board,  at  Clifton  and  at  Hartford, 
from  the  marriage  until  her  death ;  and  were  then  removed  to  Au- 
gusta in  the  State  of  Georgia,  and  there  lived  with  their  paternal 
grandmother  and  her  unmarried  daughter  and  only  living  child. 
their  aunt ;  Lamar  as  guardian  continuing  to  pay  their  board. 
After  1856  neither  of  the  children  ever  resided  in  the  State  of 
New  York.  On  January  18,  i860,  their  aunt  was  married  to 
Benjamin  H.  Micou,  of  Montgomery,  in  the  State  of  Alabama,  and 
the  children  and  their  grandmother  thereafter  lived  with  Mr.  and 
Mrs.  Micou  at  Montgomery,  and  the  children  were  educated  and 
supported  at  Mr.  Micou's  expense. 

From    1855   to    1859  Lamar   resided   partly   in   Georgia   and 


294  PRIVATE    INTERNATIONAL    LAW. 

partly  in  New  York.  In  the  spring  of  1861  he  had  a  temporary 
residence  in  the  city  of  New  York,  and  upon  the  breaking  out  of 
the  war  of  the  rebelHon,  and  after  removing  all  his  own  property,  . 
left  New  York,  and  passed  through  the  lines  to  Savannah,  and 
there  resided,  sympathizing  with  the  rebellion,  and  doing  what  he 
could  to  accomplish  its  success,  until  January,  1865,  and  con- 
tinued to  have  his  residence  in  Savannah  until  1872  or  1873,  when 
he  went  to  New  York  again,  and  afterwards  lived  there.  Mr. 
and  Mrs.  Micou  also  sympathized  with  the  rebellion  and  desired 
its  success,  and  each  of  them,  as  well  as  Lamar,  failed  during  the 
rebellion  to  bear  true  allegiance  to  the  United  States. 

At  the  time  of  Lamar's  appointment  as  guardian,  ten  shares 
in  the  stock  of  the  Mechanics  Bank  of  Augusta  in  the  State  of 
Georgia,  which  had  belonged  to  William  W.  Sims  in  his  life-time, 
stood  on  the  books  of  the  bank  in  the  name  of  Mrs.  Abercrombie, 
as  his  administratrix,  of  which  one-third  belonged  to  her  as  his 
widow,  and  one-third  to  each  of  the  infants.  In  January,  1856, 
the  bank  refused  a  request  of  Lamar  to  transfer  one-third  of  that 
stock  to  him  as  guardian  of  each  infant,  but  afterwards  paid 
to  him  as  guardian  from  time  to  time  two-thirds  of  the  divi- 
dends during  the  life  of  Mrs.  Abercrombie,  and  all  the  dividends 
after  her  death  until  1865.  During  the  period  last  named,  he  also 
received  as  guardian  the  dividends  on  some  other  bank  stock  in 
Savannah,  which  Mrs.  Abercrombie  owned,  and  to  which,  on  her 
death,  her  husband  became  entitled.  Certain  facts,  relied  on  as 
showing  that  he,  immediately  after  his  wife's  death,  made  a  sur- 
render  of  her  interest  in  the  bank  shares  to  Lamar,  as  guardian  of 
her  children,  are  not  material  to  the  understanding  of  the  decision 
of  this  court,  but  are  recapitulated  in  the  opinion  of  the  Circuit 
Court.    7  Fed.  Rep.  180-185. 

In  the  winter  of  1861-62,  Lamar,  fearing  that  the  stock  in  the 
Bank  of  the  Republic  at  New  York,  held  by  him  as  guardian, 
would  be  confiscated  by  the  United  States,  had  it  sold  by  a  friend 
in  New  York ;  the  proceeds  of  the  sale,  which  were  about  twenty 
per  cent,  less  than  the  par  value  of  the  stock,  invested  at  New 
York  in  guaranteed  bonds  of  the  cities  of  New  Orleans,  Memphis, 
and  Mobile,  and  of  the  East  Tennessee  and  Georgia  Railroad  Com- 
pany ;  and  those  bonds  deposited  in  a  bank  in  Canada. 

Lamar  from  time  to  time  invested  the  property  of  his  wards, 
that  was  within  the  so-called  Confederate  States,  in  whatever 
seemed  to  him  to  be  the  most  secure  and  safe — some  in  Confed- 
erate  States  bonds,  some  in  the  bonds  of  the   Individual   States 


GUARDIAN    AND    WARD.  295 

which  composed  the  confederacy,  and  some  in  lionds  of  cities  and 
of  railroad  corporations  and  stock  of  banks  within  these  States. 

On  the  money  of  his  wards,  accruing  from  dividends  on  bank 
stock,  and  remaining  in  his  hands,  lie  charged  himself  with  inter- 
est until  the  summer  of  1862,  when,  with  the  advice  and  aid  of 
Mr.  Micou.  he  invested  $7,000  of  such  money  in  bonds  of  the  Con- 
federate States  and  of  the  State  of  Alabama;  and  in  1863.  with 
the  like  advice  and  aid,  sold  the  Alabama  bonds  for  more  than  he 
had  paid  for  them,  and  invested  the  proceeds  also  in  Confederate 
State  bonds ;  charged  his  wards  with  the  money  paid,  and  cred- 
ited them  with  the  bonds ;  and  placed  the  bonds  in  the  hands  of 
their  grandmother,  who  gave  him  a  receipt  for  them  and  held 
them  till  the  end  of  the  rebellion,  when  they,  as  well  as  the  stock 
in  the  banks  at  Savannah,  became  worthless. 

Martha  M.  Sims  died  on  November  2,  1864,  at  the  age  of 
fifteen  years,  unmarried  and  intestate,  leaving  her  sister  Ann  C. 
Sims  her  next  of  kin.  On  January  12,  1867,  Lamar,  in  answer 
to  letters  of  inquiry  from  Mr.  and  Mrs.  Micou,  wrote  to  Mrs. 
Micou  that  he  had  saved  from  the  wreck  of  the  property  of  his 
niece,  Ann  C.  Sims,  surviving  her  sister,  three  bonds  of  the  city 
of  Memphis,  indorsed  by  the  State  of  Tennessee,  one  bond  of  the 
city  of  Mobile,  and  one  bond  of  the  East  Tennessee  and  Georgia 
Railroad  Company,  each  for  $1,000,  and  with  some  coupons  past 
due  and  uncollected ;  and  suggested  that  by  reason  of  his  age  and 
failing  health,  and  of  the  embarrassed  state  of  his  own  affairs,  ^Ir. 
Micou  should  be  appointed  in  Alabama  guardian  in  his  stead. 
Upon  receipt  of  this  letter  Mrs.  Micou  wrote  to  Lamar,  thank- 
ing him  for  the  explicit  statement  of  the  niece's  affairs,  and  for 
the  care  and  trouble  he  had  with  her  property ;  and  Ann  C. 
Sims,  then  nearly  sixteen  years  old,  signed  a  request,  attested  by 
her  grandmother  and  by  Mrs.  Micou,  that  her  guardianship  might 
be  transferred  to  Mr.  Micou,  and  that  he  might  be  appointed  her 
guardian.  And  on  March  15,  1867,  he  was  appointed  guardian 
of  her  property  by  the  Probate  Court  of  the  county  of  Montgom- 
ery and  State  of  Alabama,  according  to  the  laws  of  that  State, 
and  gave  bond  as  such. 

On  May  14,  1867,  Lamar  sent  to  Micou  complete  and  correct 
statements  of  his  guardianship  account  with  each  of  his  wards, 
as  well  as  all  the  securities  remaining  in  his  hands  as  guardian  of 
either,  and  a  check  payable  to  Micou  a  guardian  of  Ann  C.  Sims 
for  a  balance  in  money  due  her;  and  Micou,  as  such  guardian, 
signed  and  sent  to  Lamar  a  schedule  of  and  receipt  for  the  prop- 


296  PRIVATE    INTERNATIONAL    LAW. 

erty,  describing  it  specifically,  by  which  it  appeared  that  the  bonds 
of  the  cities  of  New  Orleans  and  Memphis  and  of  the  East  Ten- 
nessee and  Georgia  Railroad  Company  were  issued,  and  the  Mem- 
phis bonds,  as  well  as  the  railroad  bonds,  were  indorsed  by  the 
State  of  Tennessee,  some  years  before  the  breaking  out  of  the  re- 
bellion. Micou  thenceforth  continued  to  act  in  all  respects  as  the 
only  guardian  of  Ann  C.  Sims  until  she  became  of  age  on  June  i, 
1872. 

No  objection  or  complaint  was  ever  made  by  either  of  the 
wards,  or  their  relatives,  against  Lamar's  transactions  or  invest- 
ments as  guardian,  until  July  28,  1874,  when  Micou  wrote  to 
Lamar,  informing  him  that  Ann  C.  Sims  desired  a  settlement  of 
his  accounts ;  and  that  he  had  been  advised  that  no  credits  could 
be  allowed  for  the  investments  in  Confederate  State  bonds,  and 
that  Lamar  was  responsible  for  the  security  of  the  investments  in 
other  bonds  and  bank  stock.  Lamar  was  then  sick  in  New  York, 
and  died  there  on  October  5,  1874,  without  having  answered  the 
letter. 

Before  the  case  was  heard  in  the  Circuit  Court,  Ann  C.  Sims 
died  on  May  7,  1878 ;  and  on  June  20,  1878,  Mrs.  Micou  was  ap- 
pointed in  New  York,  administratrix  de  bonis  non  of  Martha  M. 
Sims,  and  as  such  filed  a  bill  of  revivor  in  this  suit.  On  October 
3,  1878,  the  defendant  filed  a  cross  bill,  repeating  the  allegations 
of  his  answer  to  the  original  bill,  and  further  averring  that  x\nn 
C.  Sims  left  a  will,  which  had  been  admitted  to  probate  in  Mont- 
gomery County  in  the  State  of  Alabama,  and  afterwards  in  the 
county  and  State  of  New  York,  by  which  she  gave  all  her  prop- 
erty to  Mrs.  Micou,  who  was  her  next  of  kin ;  and  that  Mrs. 
Micou  was  entitled  to  receive  for  her  own  benefit  whatever  might 
be  recovered  in  the  principal  suit,  and  was  estopped  to  deny  the 
lawfulness  or  propriety  of  Lamar's  acts,  because  whatever  was 
done  by  him  as  guardian  of  Martha  M.  Sims  in  her  lifetime,  or  as 
guardian  of  the  interests  of  Ann  C  Sims  as  her  next  of  kin,  was 
authorized  and  approved  by  Mrs.  Micou  and  her  mother  and  hus- 
band as  the  natural  guardians  of  both  children.  Mrs.  Micou,  as 
plaintiff  in  the  bill  of  revivor,  answered  the  cross  bill,  alleging 
that  Ann  succeeded  to  Martha's  property  as  administratrix,  and 
not  as  her  next  of  kin,  admitting  Ann's  will  and  the  probate  there- 
of, denying  that  Mrs.  Micou  was  a  natural  guardian  of  the  chil- 
dren, and  denying  that  she  approved  or  ratified  Lamar's  acts  as 
guardian.    A  general  replication  was  filed  to  that  answer. 

Upon  a  hearing  on  the  pleadings  and  the  agreed  statement 


GUARDIAN    AND    WARD.  297 

of  facts,  the  Circuit  Court  dismissed  the  cross  l)ill,  held  all 
Lamar's  investments  to  have  been  breaches  of  trust,  and  entered  a 
decree  referring  the  case  to  a  master  to  state  an  account.  The 
case  was  afterwards  heard  on  exceptions  to  the  master's  report, 
and  a  final  decree  entered  for  the  plaintilT  for  $18,705.19,  includ- 
ing the  value  before  1861  of  those  bank  stocks  in  Georgia  of  which 
Lamar  had  never  had  possession.  The  opinion  delivered  upon 
the  first  hearing  is  reported  in  17  Blatchford,  378,  and  in  i  Fed. 
Rep.  14,  and  the  opinion  upon  the  second  hearing  in  7  Fed.  Rep. 
180.     The  defendant  appealed  to  this  court. 

Mr.  Justice  Gr.\y  delivered  the  opinion  of  the  court.  He 
recited  the  facts  as  above  stated,  and  continued : 

The  authority  of  the  Surrogate's  Court  of  the  county  of  Rich- 
mond and  State  of  New  York  to  appoint  Lamar  guardian  of  the 
persons  and  property  of  infants  at  the  time  within  that  county, 
and  the  authority  of  the  Supreme  Court  of  the  State  of  New  York, 
in  which  this  suit  was  originally  brought,  being  a  court  of  gen- 
eral equity  jurisdiction,  to  take  cognizance  thereof,  are  not  dis- 
puted ;  and  upon  the  facts  agreed  it  is  quite  clear  that  none  of  the 
defences  set  up  in  the  answer  afiford  anv  ground  for  dismissing 
the  bill. 

The  war  of  the  rebellion,  and  the  residence  of  both  wards  and 
guardian  within  the  territory  controlled  by  the  insurgents,  did 
not  discharge  the  guardian  from  his  responsibility  to  account 
after  the  war,  for  property  of  the  wards  which  had  at  any  time 
come  into  his  hands  or  which  he  might  by  the  exercise  of  due 
care  have  obtained  possession  of.  A  state  of  war  does  not  put 
an  end  to  pre-existing  obligations,  or  transfer  the  property  of 
wards  to  their  guardians,  or  release  the  latter  from  the  duty  to 
keep  it  safely,  but  suspends  until  the  return  of  peace  the  right  of 
any  one  residing  within  the  enemy's  country  to  sue  in  our  courts. 
Ward  V.  Smith,  7  Wall.  447;  Montgomery  v.  United  States,  15 
Wall.  395,  400;  Insurance  Co.  v.  Davis,  95  V.  S.  425,  430:  Kcr- 
shcii'  V.  Kelsey,  100  Mass.  561,  563.  564,  570;  3  Phillmore  Inter- 
national Law  (2d  ed.)  §  589. 

The  appointment  of  Micou  in  1867  by  a  court  of  Alabama  to 
be  guardian  of  the  surviving  ward,  then  residing  in  that  State, 
did  not  terminate  Lamar's  liability  for  property  of  his  wards 
which  he  previously  had  or  ought  to  have  taken  possession  of. 
The  receipt  given  by  Micou  was  only  for  the  securities  and  money 
actually  handed  over  to  him  by  Lamar;  and  if  Micou  had  any 
authority  to  discharge  Lamar  from  liability  for  past  mismanage- 
ment of  either  ward's  property,  he  never  assumed  to  do  so. 


298  PRIVATE     INTERNATIONAL    LAW. 

The  suggestion  in  the  answer,  that  the  surviving  ward,  upon 
coming  of  age,  ratified  and  approved  the  acts  of  Lamar  as  guard- 
ian, finds  no  support  in  the  facts  of  the  case. 

The  further  grounds  of  defence,  set  up  in  the  cross  bill,  that 
Micou  participated  in  Lamar's  investments,  and  that  Mrs.  Micou 
approved  them,  are  equally  unavailing.  The  acts  of  Micou,  be- 
fore his  own  appointment  as  guardian,  could  not  bind  the  ward. 
And  admissions  in  private  letters  from  Mrs.  Micou  to  Lamar 
could  not  affect  the  rights  of  the  ward,  or  Mrs.  Micou's  author- 
ity, upon  being  afterwards  appointed  administratrix  of  the  ward, 
to  maintain  this  bill  as  such  against  Lamar's  representative,  even 
if  the  amount  recovered  will  inure  to  her  own  benefit  as  the  ward's 
next  of  kin.     i  Greenl.  Ev.  §  179. 

The  extent  of  Lamar's  liability  presents  more  difificult  ques- 
tions of  law,  now  for  the  first  time  brought  before  this  court. 

The  general  rule  is  everywhere  recognized,  that  a  guardian 
or  trustee,  when  investing  property  in  his  hands,  is  bound  to  act 
honestly  and  faithfully,  and  to  exercise  a  sound  discretion,  such 
as  men  or  ordinary  prudence  and  intelligence  use  in  their  own 
affairs.  In  some  jurisdictions,  no  attempt  has  been  made  to 
establish  a  more  definite  rule ;  in  others,  the  discretion  has  been 
confined,  by  the  legislature  or  the  courts,  within  strict  limits. 

The  Court  of  Chancery,  before  the  Declaration  of  Indepen- 
dence, appears  to  have  allowed  some  latitude  to  trustees  in  making 
investments.  The  best  evidence  of  this  is  to  be  found  in  the 
judgments  of  Lord  Hardwicke.  He  held,  indeed,  in  accordance 
with  the  clear  weight  of  authority  before  and  since,  that  money 
lent  on  a  mere  personal  obligation,  like  a  promissory  note,  with- 
out security,  was  at  the  risk  of  the  trustee.  Ryder  v.  Bickcrton, 
3  Swanston,  80,  note;  6".  C.  i  Eden,  149,  note;  Barney  v.  Saun- 
ders, 16  How.  535,  545  ;  Perry  on  Trusts,  §  453.  But  in  so  holding, 
he  said:  "For  it  should  have  been  on  some  such  security  as  binds 
land,  of  something,  to  be  answerable  for  it."  3  Swanston,  81, 
note.  Although  in  one  case  he  held  that  a  trustee,  directed  by  the 
terms  of  his  trust  to  invest  the  trust  money  in  government  funds 
or  other  good  securities,  was  responsible  for  a  loss  caused  by  his 
investing  in  South  Sea  stock ;  and  observed  that  neither  South 
Sea  stock  nor  bank  stock  was  considered  a  good  security,  because 
it  depended  upon  the  management  of  the  governor  and  directors, 
and  the  capital  might  be  wholly  lost.  Trafford  v.  Bochiii,  3  Atk. 
440,  444 ;  yet  in  another  case  he  declines  to  charge  a  trustee  for  a 
loss  on  South  Sea  stock  which  had  fallen  in  value  since  the  trus- 


GUARDIAN    AND    WARD.  299 

tee  received  it ;  and  said  that  "to  compel  trustees  to  make  up  a 
deficiency,  not  owing  to  their  wilful  default,  is  the  harshest  de- 
mand that  can  he  made  in  a  court  of  equitv."  Jackson  v.  Jack- 
son, I  Atk.  513,  514;  S.  C.  West  Ch.  31.  34.  Tn  a  later  case  he 
said:  "Suppose  a  trustee,  having  in  his  hands  a  considerable  sum 
of  money,  places  it  out  in  the  funds,  which  afterwards  sink  in 
their  value,  or  on  a  security  at  the  time  apparently  good,  which 
afterwards  turns  out  not  to  be  so,  for  the  benefit  of  the  cestui  que 
trust,  was  there  ever  an  instance  of  the  trustee's  being  made  to 
answer  the  actual  sum  so  placed  out?  I  answer,  no.  If  there 
is  no  mala  fides,  nothing  wilful  in  the  conduct  of  the  trustee,  the 
court  will  always  favor  him.  For  as  a  trust  is  an  ofiice  necessary 
in  the  concerns  between  man  and  man,  and  which,  if  faithfully 
discharged,  is  attended  with  no  small  degree  of  trouble  and  anx- 
iety, it  is  an  act  of  great  kindness  in  any  one  to  accept  it ;  to  add 
hazard  or  risk  to  that  trouble,  and  subject  a  trustee  to  losses  which 
he  could  not  foresee,  and  consequently  not  prevent,  would  be  a 
manifest  hardship,  and  would  be  deterring  every  one  from  accept- 
ing so  necessary  an  ofifice."  That  this  opinion  was  not  based 
upon  the  fact  that  in  England  trustees  usually  receive  no  com- 
pensation is  clearly  shown  by  the  Chancellor's  adding  that  the 
same  doctrine  held  good  in  the  case  of  a  receiver,  an  officer  of  the 
court,  and  paid  for  his  trouble ;  and  the  point  decided  was  that 
a  receiver,  who  paid  the  amount  of  rents  of  estates  in  his  charge 
to  a  British  tradesman  of  good  credit,-  taking  his  bills  therefor  on 
London,  was  not  responsible  for  the  less  of  the  money  by  his  be- 
coming bankrupt.  Knight  V.  Plymouth,  i  Dickens,  120,  126,  127; 
6".  C.  3  Atk.  480.  And  the  decision  was  afterwards  cited  by 
Lord  Hardwicke  himself  showmg  that  when  trustees  act  by 
other  hands,  according  to  the  usage  of  business,  they  are  not  an- 
swerable for  losses.  Ex  parte  Belchicr,  Ambler,  219;  S  C.  i 
Kenyon,  38,  47. 

In  later  times,  as  the  amount  and  variety  of  English  govern- 
ment securities  increased,  the  Court  of  Chancery  limited  trust 
investments  to  the  public  funds,  disapproved  investments  either 
in  bank  stock,  or  in  mortgages  of  real  estate,  antl  prescribed  so 
strict  a  rule  that  Parliament  interposed  ;  and  by  the  statutes  of 
22  &  23  Vict.  ch.  35,  and  23  &  24  \'ict.  ch.  t^^.  and  by  general 
orders  in  chancery,  pursuant  to  those  statutes,  trustees  have  been 
authorized  to  invest  in  stock  of  the  T'ank  of  England  or  of  Ire- 
land, or  upon  mortgage  of  freehold  or  copyhold  estates,  as  well  as 
in  the  public  funds.    Lewin  on  Trusts  (7th  ed.)  2S2,  283.  id'j. 


300  PRIVATE     INTERNATIONAL    LAW. 

In  a  very  recent  case,  the  Court  of  Appeal  and  the  House  of 
Lords,  following  the  decisions  of  Lord  Hardwicke,  in  Knight  v. 
Plymouth  and  Ex  parte  Belchier,  above  cited,  held  that  a  trustee 
investing  trust  funds,  who  employed  a  broker  to  procure  securities 
authorized  by  the  trust,  and  paid  the  purchase  money  to  the 
broker,  if  such  was  the  usual  and  regular  course  of  business  of 
persons  acting  with  reasonable  care  and  prudence  on  their  own 
account,  was  not  liable  for  the  loss  of  the  money  by  fraud  of  the 
broker.  Sir  George  Jessel,  M.  R.,  Lord  Justice  Bowen,  and  Lord 
Blackburn  affirmed  the  general  rule  that  a  trustee  is  only  bound 
to  conduct  the  business  of  his  trust  in  the  same  manner  that  an 
ordinary  prudent  man  of  business  would  conduct  his  own ;  Lord 
Blackburn  adding  the  qualification  that  "a  trustee  must  not  choose 
investments  other  than  those  which  the  terms  of  his  trust  permit." 
Speight  V.  Gaunt,  22  ch.  D.  727,  739,  762;  9  App.  Cas.  i,  19. 

In  this  country,  there  has  been  a  diversity  in  the  laws  and 
usages  of  the  several  States  upon  the  subject  of  trust  investments. 

In  New  York,  under  Chancellor  Kent,  the  rule  seems  to  have 
been  quite  undefined.  See  Smith  v.  Smith,  4  Johns.  Ch.  281,  285 ; 
Thompson  v.  Brozvn,  4  Johns.  Ch.  619,  628,  629,  where  the  chan- 
cellor quoted  the  passage  above  cited  from  Lord  Hardwicke's 
opinion  in  Knight  v.  Plymouth.  And  in  Brown  v.  Campbell, 
Hopk.  Ch.  233,  where  an  executor  in  good  faith  made  an  invest- 
ment, considered  at  the  time  to  be  advantageous,  of  the  amount 
of  two  promissory  notes,  due  to  his  testator  from  one  manu- 
facturing corporation,  in  the  stock  of  another  manufacturing  cor- 
poration, which  afterwards  became  insolvent.  Chancellor  Sanford 
held  that  there  was  no  reason  to  charge  him  with  the  loss.  But 
by  the  latter  decisions  in  that  State  investments  in  bank  or  rail- 
road stock  have  been  held  to  be  at  the  risk  of  the  trustee,  and  it 
has  been  intimated  that  the  only  investments  that  a  trustee  can 
safely  make  without  an  express  order  of  the  court  are  in  govern- 
ment or  real  estate  securities.  King  v.  Talbot,  40  N.  Y.  76, 
affirming  5^.  C.  50  Barb.  453;  Ackerman  v.  Emott,  4  Barb.  626; 
Mills  V.  Hoffman,  26  Hun.  594;  2  Kent  Com.  416,  note  h.  So  the 
decisions  in  New  Jersey  and  Pennsylvania  tend  to  disallow  invest- 
ments in  the  stock  of  banks  or  other  business  corporations,  or 
otherwise  than  in  the  public  funds  or  in  mortgages  of  real  estate. 
Gray  v.  Fox,  Saxon,  259,  268 ;  Halstcad  v.  Meeker,  3  C.  E.  Green, 
136;  Lathrop  v.  Smalley,  8  C.  E.  Green,  192;  IVorrell's  Appeal, 
9  Penn.  St.  508,  and  23  Penn.  St.  44;  Hemphin's  Appeal,  18  Penn. 
St.  303;  Ihmsen's  Appeal,  43  Penn.  St.  431.    And  the  New  York 


GUARDIAN    AND    WARD.  301 

and  Pennsylvania  courts  have  shown  a  strong  disinclination  to 
permit  investments  in  real  estate  or  securities  out  of  their  jurisdic- 
tion.    Onniston  v.  OJcott,  84  N.  Y.  339;  Rush's  Estate,  12  Penn. 

St.  375. 378. 

In  New  England,  and  in  the  Southern  States,  the  rule  has  been 
less  strict. 

In  Massachusetts,  by  a  usage  of  more  than  half  a  century, 
approved  by  a  uniform  course  of  judicial  decision,  it  has  come  to 
be  regarded  as  too  firmly  settled  to  be  changed,  except  by  the 
legislature,  that  all  that  can  be  required  of  a  trustee  to  invest  is 
that  he  shall  conduct  himself  faithfully  and  exercise  a  sound  dis- 
cretion, such  as  men  of  prudence  and  intelligence  exercise  in  the 
permanent  disposition  of  their  own  funds,  having  regard  not  only 
to  the  probable  income,  but  also  to  the  probable  safety  of  the  capi- 
tal ;  and  that  a  guardian  or  trustee  is  not  precluded  from  invest- 
ing in  the  stock  of  banking,  insurance,  manufacturing  or  railroad 
corporations,  within  or  without  the  State.  Harvard  College  v. 
Amory,  9  Pick.  446,  461;  Lovell  v.  Minot,  20  Pick.  116,  119; 
Kinmonth  v.  Brigham,  5  Allen,  270,  277 ;  Clark  v.  Garfield,  8 
Allen,  427;  Brown  v.  French,  12^  Mass.' 410;  Boivker  v.  Pierce, 
130  Mass.  262.  In  New  Hampshire  and  in  Vermont,  invest- 
ments, honestly  and  prudently  made,  in  securities  of  any  kind 
that  produce  income,  appear  to  be  allowed.  Knozvlton  v.  Bradley, 
17  N.  H.  458;  Kimball  v.  Reding,  11  Foster,  352.  374;  French  v. 
Currier,  47  N.  H.  88,  99;  Barney  v.  Parsons,  54  Vermont,  623. 

In  Maryland,  good  bank  stock,  as  well  as  government  securi- 
ties and  mortgages  on  real  estate,  has  always  been  considered  a 
proper  investment.  Hauuuond  v.  Hauiuiond,  2  Bland.  306,  413; 
Gray  v.  Lynch,  8  Gill,  403;  Murray  v.  Feinour,  2  Maryland  Ch. 
418.  So  in  Mississippi,  investment  in  bank  stock  is  allowed. 
Smyth  V.  Burns,  25  Mississippi,  422. 

In  South  Carolina,  before  the  w^ar,  no  more  definite  rule  ap- 
pears to  have  been  laid  down  than  that  guardians  and  trustees 
must  manage  the  funds  in  their  hands  as  prudent  men  manage 
their  own  affairs.  Boggs  v.  Adger,  4  Rich.  Eq.  408,  411;  Spear 
V.  Spear,  9  Rich.  Eq.  184,  201  ;  Snelling  v.  McCreary.  14  Kicli. 
Eq.  291,  300. 

In  Georgia,  the  English  rule  was  never  adopted ;  a  statute  of 
1845,  which  authorized  executors,  administrators,  guardians  and 
trustees,  holding  any  trust  funds,  to  invest  them  in  securities  of 
the  State,  was  not  considered  compulsory ;  and  before  January 
I,   1863   (when  the  statute  was  amended  by  adding  a  provision 


302  PRIVATE     INTERNATIONAL    LAW. 

that  any  other  investment  of  trust  funds  must  be  made  under  a 
judicial  order,  or  else  be  at  the  risk  of  the  trustee),  those  who  lent 
the  fund  at  interest,  on  what  was  at  the  time  considered  by  pru- 
dent men  to  be  good  security,  were  not  held  liable  for  loss  with- 
out their  fault.  Cobb's  Digest,  333;  Code  of  1861,  §  2308; 
Brown  v.  Wright,  39  Georgia,  96;  Moses  v.  Moses,  50  Georgia, 

9,33- 

In  Alabama,  the  Supreme  Court,  in  Bryant  v.  Craig,  12 
Alabama,  354,  359,  having  intimated  that  a  guardian  could  not 
safely  invest  upon  either  real  or  personal  security  without  an 
order  of  court,  the  legislature,  from  1852,  authorized  guardians 
and  trustees  to  invest  on  bond  and  mortgage,  or  on  good  personal 
security,  with  no  other  limit  than  fidelity  and  prudence  might  re- 
quire. Code  of  1852,  §  2024;  Code  of  1867,  §  2426;  Foscne  v. 
Lyon,  55  Alabama,  440,  452. 

The  rules  of  investment  varying  so  much  in  the  different 
States,  it  becomes  necessary  to  consider  by  what  law  the  man- 
agement and  investment  of  the  ward's  property  should  be  governed. 

As  a  general  rule  (with  some  exceptions  not  material  to  the 
consideration  of  this  case)  the  law  of  the  domicil  governs  the 
status  of  a  person,  and  the  disposition  and  management  of  his 
movable  property.  The  domicil  of  an  infant  is  universally  held 
to  be  the  fittest  place  for  the  appointment  of  a  guardian  of  his 
person  and  estate ;  although  for  the  protection  of  either,  a  guard- 
ian may  be  appointed  in  any  State  where  the  person  or  any  prop- 
erty of  an  infant  may  be  found.  On  the  continent  of  Europe, 
the  guardian  appointed  in  the  State  of  the  domicil  of  the  ward  is 
generally  recognized  as  entitled  to  the  control  and  dominion  of 
the  ward  and  his  movable  property  everywhere,  and  guardians 
specially  appointed  in  other  States  are  responsible  to  the  principal 
guardian.  By  the  law  of  England  and  of  this  country,  a  guardian 
appointed  by  the  courts  of  one  State  has  no  authority  over  the 
ward's  person  or  property  in  another  State,  except  so  far  as 
allowed  by  the  comity  of  that  State,  as  expressed  through  its 
legislature  or  its  courts ;  but  the  tendency  of  modern  statutes  and 
decisions  is  to  defer  to  the  law  of  the  domicil,  and  to  support  the 
authority  of  the  guardian  appointed  there.  Hoyt  v.  Sprague,  103 
U.  S.  613,  631,  and  authorities  cited;  Morrell  v.  Dickey,  i  Johns. 
Ch.  153;  IVoodivorth  v.  Spring,  4  Allen,  321  ;  Milliken  v.  Pratt, 
125  Mass.  374,  377,  378;  Leonard  v.  Putnam,  51  N.  H.  247; 
Conimonzvealth  v.  Rlioads,  37  Penn.  St.  60;  Sims  v.  Renzvick,  25 
Georgia,  58;  Dicey  on  Domicil,  172-176;  Westlake  Private  Inter- 


GUARDIAN    AND    WARD.  303 

national  Law  (2d  ed.)  48-50;  Wharton  Conflict  of  Laws  (2d  ed.) 
§§  259-268. 

An  infant  cannot  change  his  own  domicil.  As  infants  have 
the  domicil  of  their  father,  he  may  change  their  domicil  by  chang- 
ing his  own ;  and  after  his  death  the  mother,  while  she  remains  a 
widow,  may  likewise,  by  changing  her  domicil,  change  the  domi- 
cil of  the  infants ;  the  domicil  of  the  children,  in  either  case,  fol- 
lowing the  independent  domicil  of  their  parent.  Kennedy  v. 
Ryall,  67  N.  Y.  379;  Potinger  v.  IVightnian,  3  Meriv.  67;  Ded- 
ham  V.  Natick,  16  Mass.  135;  Dicey  on  Domicil,  97-99.  l>iit 
when  the  widow,  by  marrying  again,  acquires  the  domicil  of  a 
second  husband,  she  does  not,  by  taking  her  children  by  the  hrst 
husband  to  live  with  her  there,  make  the  domicil  which  she  de- 
rives from  her  second  husband  their  domicil ;  and  they  retain  the 
domicil  which  they  had,  before  her  second  marriage,  acquired 
from  her  or  from  their  father.  Cnmner  v.  Milton,  3  Salk.  259; 
6*.  C.  Holt,  578;  Freetown  v.  Taunton,  16  Mass.  52;  School  Di- 
rectors V.  James,  2  Watts  &  Sergeant,  568 ;  Johnson  v.  Copcland, 
35  Alabama,  521;  Broivn  v.  Lynch,  2  Bradford,  214:  Mcars  v. 
Sinclair,  i  West  Virginia,  185 ;  Pothier  Introduction  Generale 
aux  Coutumes,  No.  19;  i  Burge  Colonial  and  Foreign  Law,  39; 
4  Phillimore  International  Law  (2d  ed.)  §  97. 

The  preference  due  to  the  law  of  the  ward's  domicil.  and  the 
importance  of  a  uniform  administration  of  his  whole  estate,  re- 
quire that,  as  a  general  rule,  the  management  and  investment  of 
his  property  should  be  governed  by  the  law  of  the  State  of  his 
domicil,  especially  when  he  actually  resides  there,  rather  than  by 
the  law  of  any  State  in  which  a  guardian  may  have  been  appointed 
or  may  have  received  some  property  of  the  ward.  If  the  duties 
of  the  guardian  were  to  be  exclusively  regulated  by  the  law  of  the 
State  of  his  appointment,  it  would  follow  that  in  any  case  in  which 
the  temporary  residence  of  the  ward  was  changed  from  State  to 
State,  from  considerations  of  health,  education,  pleasure  or  con- 
venience, and  guardians  were  appointed  in  each  State,  the  guard- 
ians appointed  in  the  different  States,  even  if  the  same  persons, 
might  be  held  to  diverse  rules  of  accounting  for  different  parts 
of  the  ward's  property.  The  form  of  accounting,  so  far  as  con- 
cerns the  remedy  only,  must  indeed  be  according  to  the  law  of  the 
court  in  which  relief  is  sought ;  but  the  general  rule  by  which  the 
guardian  is  to  be  held  responsible  for  the  investment  of  the  ward's 
property  is  the  law  of  the  place  of  the  domicil  of  the  ward.  Bar 
International  Law,  §  106  (Gillespie's  translation),  438;  Wharton 
Conflict  of  Laws,  §  259. 


304  PRIVATE     INTERNATIONAL    LAW. 

It  may  be  suggested  that  this  would  enable  the  guardian,  by 
changing  the  domicil  of  his  ward,  to  choose  for  himself  the  law 
by  which  he  should  account.  Not  so.  The  father,  and  after  his 
death  the  widowed  mother,  being  the  natural  guardian,  and  the 
person  from  whom  the  ward  derives  his  domicil,  may  change  that 
domicil.  But  the  w^ard  does  not  derive  a  domicil  from  any  other 
than  a  natural  guardian.  A  testamentary  guardian  nominated  by 
the  father  may  have  the  same  control  of  the  ward's  domicil  that 
the  father  had.  Wood  v.  Wood,  5  Paige,  596,  605.  And  any 
guardian,  appointed  in  the  State  of  the  domicil  of  the  ward,  has 
been  generally  held  to  have  the  power  of  changing  the  ward's 
domicil  from  one  county  to  another  within  the  same  State  and 
under  the  same  law.  Ciitts  v.  Haskins,  9  Mass.  543 ;  Holyokc  v. 
Haskijis,  5  Pick.  20;  Kirkland  v.  Whately,  4  Allen,  462;  Ander- 
son v.  Anderson,  42  Vermont,  350;  Ex  parte  Barflett,  4  Bradford, 
221  ;  The  Queen  v.  Whitby,  L.  R.  5  O.  B.  325,  331.  But  it  is  very 
doubtful,  to  say  the  least,  whether  even  a  guardian  appointed  in 
the  State  of  the  domicil  of  the  ward  ( not  being  the  natural  guard- 
ian or  a  testamentary  guardian)  can  remove  the  ward's  domicil 
beyond  the  limits  of  the  State  in  which  the  guardian  is  appomted 
and  to  which  his  legal  authority  is  confined.  Douglas  v.  Doug- 
las, L.  R.  12  Eq.  617,  625  ;  Daniel  v.  Hill,  52  Alabama  430;  Story 
Conflict  of  Laws,  §  506.  note;  Dicey  on  Domicil,  100,  132.  And 
it  is  quite  clear  that  a  guardian  appointed  in  a  State  in  which  the 
ward  is  temporarily  residing  cannot  change  the  ward's  permanent 
domicil  from  one  State  to  another. 

The  case  of  such  a  guardian  differs  from  that  of  an  executor 
of,  or  a  trustee  under,  a  will.  In  the  one  case,  the  title  in  the 
propertv  is  in  the  executor  or  the  trustee ;  in  the  other,  the  title  in 
the  propertv  is  in  the  ward,  and  the  guardian  has  only  the  cus- 
tody and  management  of  it,  with  power  to  change  its  investment. 
The  executor  or  trustee  is  appointed  at  the  domicil  of  the  testator ; 
the  guardian  is  most  fitly  appointed  at  the  domicil  of  the  ward, 
and  may  be  appointed  in  any  State  in  which  the  person  or  any 
property  of  the  ward  is  found.  The  general  rule  which  governs 
the  administration  of  the  property  in  the  one  case  may  be  the  law 
of  the  domicil  of  the  testator ;  in  the  other  case,  it  is  the  law  of  the 
domicil  of  the  ward. 

As  the  law  of  the  domicil  of  the  ward  has  no  extra-territorial 
effect,  except  by  the  comity  of  the  State  where  the  property  is 
situated,  or  where  the  guardian  is  appointed,  it  cannot  of  course 
prevail  against  a  statute  of  the  State  in  which  the  question  is  pre- 


GUARDIAN    AND    WARD.  305 

scnted  for  adjudiciation,  expressly  applical)le  to  the  estate  of  a 
ward  domiciled  elsewhere.  Hoyt  v.  Sf^raguc,  103  U.  S.  613. 
Cases  may  also  arise  with  facts  so  peculiar  or  so  complicated  as 
to  modify  the  degree  of  influence  that  the  court  in  which  the 
guardian  is  called  to  account  may  allow  to  the  law  of  the  domicil 
of  the  ward,  consistently  with  doing  justice  to  the  parties  before 
it.  And  a  guardian,  who  had  in  good  faith  conformed  to  the  law 
of  the  State  in  which  he  was  appointed,  might  perhaps  be  ex- 
cused for  not  having  complied  with  stricter  rules  prevailing  at 
the  domicil  of  the  ward.  But  in  a  case  in  which  the  domicil  of 
the  ward  has  always  been  in  a  State  whose  law  leaves  much  to 
the  discretion  of  the  guardian  in  the  matter  of  investments,  and 
he  has  faithfully  and  prudently  exercised  that  discretion  with  a 
view  to  the  pecuniary  interests  of  the  ward,  it  would  be  inconsis- 
tent with  the  principles  of  equity  to  charge  him  with  the  amount 
of  the  moneys  invested,  merely  because  he  has  not  complied  with 
the  more  rigid  rules  adopted  by  the  courts  of  the  State  in  which 
he  was  appointed. 

The  domicil  of  William  W.  Sims  during  his  life  and  at  the 
time  of  his  death  in  1850  was  in  Georgia.  This  domicil  continued 
to  be  the  domicil  of  his  widow  and  of  their  infant  children  until 
they  acquired  new  ones.  In  1853,  the  widow,  by  marrying  the 
Rev.  Mr.  Abercrombie,  acquired  his  domicil.  But  she  did  not, 
by  taking  the  infants  to  the  home,  at  first  in 'New  York  and  after- 
wards in  Connecticut,  of  her  new  husband,  who  was  of  no.  kin 
to  the  children,  was  under  no  legal  obligation  to  support  them, 
and  was  in  fact  paid  for  their  board  out  of  their  property,  make 
his  domicil,  or  the  domicil  derived  by  her  from  him,  the  domicil 
of  the  children  of  the  first  husband.  Immediately  upon  her  death 
in  Connecticut,  in  1859,  these  children,  both  under  ten  years  of  age, 
were  taken  back  to  Georgia  to  the  house  of  their  father's  mother- 
and  unmarried  sister,  their  own  nearest  surviving  relatives ;  and 
they  continued  to  live  with  their  grandmother  and  aunt  in  Georgia 
until  he  marriage  of  the  aunt  in  January,  i860;  to  Mr.  Micou.  a 
citizen  of  Alabama,  after  which  the  grandmother  and  the  children 
resided  with  Mr.  and  Mrs.  Micou  at  their  (l(-)micil  in  that  State. 

Upon  these  facts,  the  domicil  of  the  children  was  always  in 
Georgia  from  their  birth  until  January,  i860,  and  thenceforth 
was  either  in  Georgia  or  in  Alabama.  As  the  rules  of  investment 
prevailing  before  1863  in  Georgia  and  in  Alabama  did  not  sub- 
stantially differ,  the  question  in  which  of  those  two  States  their 
domicil  was  is  immaterial  to  the  decision  of  this  case ;  and  it  is 
20 


306  PRIVATE    INTERNATIONAL    LAW. 

therefore  unnecessary  to  consider  whether  their  ^grandmother  was 
their  natural  guardian,  and  as  such  had  the  power  to  change  their 
domicil  from  one  State  to  another.  See  Margrave's  note  66  to 
Co.  Lit.  88  b;  Reeve  Domestic  Relations,  315;  2  Kent.  Com.  219; 
Code  of  Georgia  of  1861,  §§  1754,  2452;  Dardcn  v.  JVyatt,  15 
Georgia,  414. 

Whed-er  the  domicil  of  Lamar  in  December,  1855,  when  he 
was  appointed  in  New  York  guardian  of  the  infants,  was  in  New 
York  or  in  Georgia,  does  not  distinctly  appear,  and  is  not  mate- 
rial ;  because,  for  the  reasons  already  stated,  wherever  his  domicil 
was,  his  duties  as  guardian  in  the  management  and  investment  of 
the  property  of  his  wards  were  to  be  regulated  by  the  law  of  their 
domicil. 

It  remains  to  apply  the  test  of  that  law  to  Lamar's  acts  or 
omissions  with  regard  to  the  various  kinds  of  securities  in  which 
the  property  of  the  wards  was  invested. 

I.  The  sum  which  Lamar  received  in  New  York  in  money 
from  Mrs.  Abercrombie  he  invested  in  1856  and  1857  in  stock  uf 
the  Bank  of  the  Republic  at  New  York,  and  of  the  Bank  of  Com- 
merce at  Savannah,  both  of  which  were  then,  and  continued  till 
the  breaking  out  of  the  v.'ar,  in  sound  condition,  paying  good  divi- 
dends. There  is  nothing  to  raise  a  suspicion  that  Lamar,  in  mak- 
ing these  investments,  did  not  use  the  highest  degree  of  prudence ; 
and  they  were  such  as  by  tlie  law  of  Georgia  or  of  Alabama  he 
might  properlv  make.  Nor  is  there  any  evidence  that  he  was 
eruiltv  of  neglect  in  not  withdrawing  the  investment  in  the  stock 
of  the  Bank  of  Commerce  at  Savannah  before  it  became  worth- 
less. He  should  not  therefore  be  charged  with  the  loss  of  that 
stock. 

The  investment  in  the  stock  of  the  Bank  of  the  Republic  of 
New  York  being  a  proper  investment  by  the  law  of  the  domicil 
of  the  wards,  and  there  being  no  evidence  that  the  sale  of  that 
stock  by  Lamar's  order  in  New  York  in  1862  vx^as  not  judicious, 
or  was  for  less  than  its  fair  market  price,  he  was  not  responsible 
for  the  decrease  in  its  value  between  the  times  of  its  purchase  and 
of  its  sale.  He  had  the  authority,  as  guardian,  without  any  order 
of  court,  to  sell  personal  property  of  his  ward  in  his  own  posses- 
sion, and  to  reinvest  the  proceeds.  Field  v.  SchieffcUn,  7  Johns. 
Ch.  150;  Ellis  V.  Essex  Merrimack  Bridge,  2  Pick.  243.  That  his 
motive  in  selling  it  was  to  avoid  its  being  confiscated  by  the  United 
States  does  not  appear  to  us  to  have  any  bearing  on  the  rights 
of  these  parties.    And  no  statute  undei    A^hich  it  could  have  been 


GUARDIAN    AND    WARD.  307 

confiscated  has  been  brought  to  our  notice.  The  act  of  July  17, 
1862,  ch.  195,  §  6,  cited  by  the  appellant,  is  limited  to  property 
of  persons  en.c^aged  in  or  abcttino;  armed  rebellion,  which  could 
hardly  be  predicated  of  two  girls  un.dcr  thirteen  years  of  age.  12 
Stat.  59  r.  Whatever  nability,  criminal  or  civil,  Lamar,  ma\  have 
mcurred  or  avoided  as  towards  the  United  States,  there  was'  r.oth- 
ing  in  his  selling  this  stock,  and  turning  it  into  money,  of  which  his 
wards  had  any  right  to  complain. 

As  to  the  sum  received  from  the  sale  of  the  stock  in  the  Hank 
of  the  Republic,  we  find  nothing  in  the  facts  agreed  by  the  parties, 
upon  which  the  case  was  heard,  to  support  the  argumenl  that 
Lamar,  under  color  of  protecting  his  wards'  interests,  allowed 
the  funds  to  be  lent  to  cities  and  other  corporations  which  were 
aiding  in  the  rebellion.  On  the  contrary,  it  is  agreed  that  that 
sum  was  applied  to  the  purchase  in  New  York  of  guarautt-ed 
bonds  of  the  cities  of  Xew  Orleans,  Memphis  and  Mobile,  and  of 
the  East  Tennessee  and  Georgia  Railroad  Company ;  and  the  de- 
scription of  those  bonds,  in  the  receipt  afterwards  given  by  Micou 
to  Lamar,  shows  that  the  bonds  of  that  railroad  companv.  and  of 
the  cities  of  Xew  Orleans  and  Memphis,  at  least,  were  issued 
some  years  before  the  breaking  out  of  the  rebellion,  and  that  the 
bonds  of  the  city  of  Memphis  and  the  railroad  company  were 
at  the  time  of  their  issue  mdorsed  b}-  the  State  of  Tennessee.  The 
company  had  its  charter  from  that  State,  and  its  road  was  partly 
in  Tennessee  and  partly  in  Georgia.  Tenn.  St.  1848,  ch.  169. 
Under  the  discretion  allowed  to  a  guardian  or  trustee  by  the  law 
of  Georgia  and  of  Alabama,  he  was  not  precluded  from  investing 
the  funds  in  his  hands  in  bonds  of  a  railroad  corporation,  indorsed 
by  the  State  by  which  it  was  chartered,  or  in  bonds  of  a  city.  As 
Lamar,  in  making  these  investments,  appears  to  have  used  due 
care  and  prudence,  having  regard  to  the  best  pecuniary  interests 
of  his  wards,  the  sum  so  invested  should  be  credited  to  him  in 
this  rase,  unless,  as  suggested  at  the  argument,  the  requisite  allow- 
ance nas  already  been  made  in  the  final  decree  of  the  Circuit  Court 
m  the  suit  brought  by  the  representative  of  the  other  ward,  an 
appeal  from  which  was  dismissed  by  this  court  for  want  of  juris- 
diction in  104  L^.  S.  465. 

2.  Other  moneys  of  the  wards  in  Lamar's  hands,  arising 
either  from  dividends  which  he  had  received  on  their  behalf,  or 
from  interest  with  which  he  charged  himself  upon  sums  not  in- 
vested, w^ere  used  in  the  purchase  of  bonds  of  the  Confeticrate 
States,  and  of  the  State  of  Alabama. 


308  PRIVATE    INTERNATIONAL    LAW. 

The    investment   in   bonds   of   the    Confederate    States    was 
clearly  unlawful,  and  no  legislative  act  or  judicial  decree  or  de- 
cision of  any  State  could  justify  it.     The  so-called  Confederate 
government  was  in  no  sense  a  lawful  government,  but  was  a  mere 
government  of  force,  having  its  origin  and  foundation  in  rebel- 
lion against  the  United  States.     The  notes  and  bonds  issued  in 
its  name  and  for  its  support  had  no  legal  value  as  money  or  prop- 
erty, except  by  agreement  or  acceptance  of  parties  capable   of 
contracting  with  each  other,  and  can  never  be  regarded  by  a  court 
sitting  under  the  authority  of  the  United  States  as  securities  in 
which  trust  funds  might  be  lawfully  invested.       Thorington  v. 
Smith,  8  Wall,  i  ;  Head  v.  Storks,  Chase,  312;  Horn  v.  Lockhari, 
17  Wall.  570;  Confederate  Note  Case,  19  Wall.  548;  Sprott  \. 
United  Stales,  20  Wall.  459;  Fretz  v.  Stover,  22  Wall.  198;  Alex- 
ander V.  Bryan,  no  U.  S.  414.     An  infant  has  no  capacity,  by 
contract  Vv^ith  his  guardian,  or  by  assent  to  his  unlawful  acts,  to 
affect  his  own  rights.    The  case  is  governed  in  this  particular  by 
the  decision  in  Horn  v.  Lockhart,  in  which  it  was  held  that  an 
executor  was  not  discharged  from  his  liability  to  legatees  by  hav- 
ing invested  fimds,  pursuant  to  a  statute  of  the  State,  and  with 
the  approval  of  the  probate  court  by  which  he  had  been  appointed, 
in  bonds  of  the  Confederate  States,  which  became  worthless  in  his 
hands. 

Neither  the  date  nor  the  purpose  of  the  issue  of  the  bonds  of 
the  State  of  Alabama  is  shown,  and  it  is  unnecessary  to  consider 
the  lawfulness  of  the  investment  in  those  bonds,  because  Lamar 
appears  to  have  sold  them  for  as  much  as  he  had  paid  for  them, 
aiid  to  have  invested  the  proceeds  in  additional  Confederate  States 
bonds,  and  for  the  amount  thereby  lost  to  the  estate  he  was  ac- 
countable. 

3.  The  stock  in  the  Mechanics'  Bank  of  Georgia,  which  had 
belonged  to  William  W.  Sims  in  his  lifetime,  and  stood  on  the 
books  of  the  bank  in  the  name  of  his  administratrix,  and  of  which 
one-third  belonged  to  her  as  his  widow,  and  one-third  to  each  of 
the  infants,  never  came  into  Lamar's  possession;  and  upon  a  re- 
quest made  by  him,  the  very  next  month  after  his  appointment, 
the  bank  refused  to  transfer  to  him  any  part  of  it.  He  did  receive 
and  account  for  the  dividends ;  and  he  could  not,  under  the  law 
of  Georgia  concerning  foreign  guardians,  have  obtained  posses- 
sion of  property  of  his  wards  within  thnt  State  without  the  con- 
sent of  the  ordinary.  Code  of  1S61,  §§  1834-1839.  The  attempt 
to  charge  him  for  the  value  of  the  principal  of  the  stock  must  fail 


GUARDIAN    AND    WARD.  309 

for  two  reasons :  First.  This  very  stock  had  not  only  belonged  to 
the  father  cf  the  wards  in  his  lifetime,  but  it  was  such  stock  as  a 
guardian  or  trustee  might  properly  invest  in  by  the  law  of  Geor- 
gia. Second.  No  reason  is  shown  why  this  stock,  being  in  Geor- 
gia, the  domicil  of  the  wards,  should  have  been  transferred  to  a 
guardian  who  had  been  appointed  in  New  York  during  their  tem- 
porary residence  there. 

The  same  reasons  are  conclusive  against  charging  him  with 
the  value  of  the  bank  stock  in  Georgia,  which  was  owned  by  Mrs. 
Abercrombie  in  her  own  right,  and  to  which  Mr.  Abercrombie  be- 
came entitled  upon  her  death.  It  is  therefore  unnecessary  to  con- 
sider whether  there  is  sufficient  evidence  of  an  immediate  sur- 
render by  him  of  her  interest  to  her  children. 

The  result  is,  that 

Both  the  decrees  of  the  Circuit  Court  in  this  case  must  be  re- 
versed, and  the  case  remanded  for  further  proceedings  in 
conformity  with  this  opinion}^ 

"'A  guardian  appo.nted  by  a  foreign  court  over  wards  who  are  for- 
eigners may  be  allowed  to  retain  his  control  over  the  wards,  or  a  new 
guardian  may  be  appointed  to  protect  such  wards.  Nugent  z\  Vetzera, 
Lazv  Reports,  2  Equity  704.  A  foreign  guardian  has  no  authority  over  the 
person  or  property  of  his  ward.  IVoodivorth  v.  Spring,  4  Allen  (Mass.) 
321.  A  foreign  guardian  cannot  sue  or  be  sued,  nor  can  he  be  called  to 
account  in  any  court  but  the  one  that  appointed  him.  Morgan  v.  Potter, 
157  U.  S.  195:  McCleary  v.  Menke,  109  III.  294;  Donley  v.  Shields,  14  Ohio 
359;  Burnet  v.  Burnet,  12  B.  Monroe  323. 

A  state  may  allow  a  foreign  guardian  of  a  non-resident  to  get  control 
of  the  ward's  personal  property.  This  is  usually  accomplished  by  applying 
to  the  probate  court.  Grimmett  v.  IVitlierington,  16  Ark.  377;  In  re  Ben- 
ton, 92  lozca  202,  60  N.  IV.  614.  As  a  rule  a  guardian  is  appointed  in  each 
state  in  which  the  ward  has  personal  property.  However,  the  guardian 
appointed  at  the  domicil  may  be  appointed  ancillary  guardian  also.  Hoyt 
V.  S Prague,  103  U.  S.  613;  Jefferson  v.  Glover,  46  Miss.  310. 

A  guardian  has  no  power  over  real  property  in  another  state  or 
country.  Watts  v.  Wilson,  93  Ky.  495.  20  S.  W.  505;  Smith  v.  Wiley,  22 
Ala.  396;  Grist  v.  Forehand,  36  Miss.  69. 


CHAPTER  XI. 

LEGITIMATION  AND  ADOPTION. 

BLYTHE  V.  AYRES,   1892. 

[96  Cal.  532.] 

I.  Legitimation  by  Subsequent  Acts     2.  The  Law  Applied  to  Acts  of  Le- 
of  the  Parents.  gitimation. 

Appeal  by  the  "Williams  heirs"  from  a  judgment  of  the 
Superior  Court'  of  the  city  and  county  of  San  Francisco  declaring 
Florence  Blythe  to  be  the  sole  heir  of  Thomas  H.  Blythe,  deceased. 

The  court  below  found  that  the  real  name  of  the  deceased 
was  Thomas  H.  Williams,  that  he  had  no  heirs  in  the  direct  line 
except  the  plaintiff,  Florence  Blythe,  and  that  the  persons  known 
as  the  "Williams  heirs"  were  next  of  kin  to  him  in  the  collateral 
line.  There  are  numerous  other  claimants,  who  contest  the  find- 
mg  in  favor  of  the  Williams  heirs,  on  behalf  of  whom  briefs  were 
permitted  to  be  filed  upon  this  appeal  by  their  counsel  as  amici 
curiae.    Further  facts  are  stated  in  the  opinion. 

Garoutte,  J. — This  is  an  action  instituted  under  section  1664 
of  the  Code  of  Civil  Procedure  by  the  plaintiff,  a  minor,  through 
her  guardian,  to  determine  the  heirship  and  title  to  the  estate  of 
Thom.as  H.  Blythe,  deceased.  The  section  provides  that  in  all 
estates  being  administered,  or  that  may  hereafter  be  adminis- 
tered, any  person  claiming  to  be  heir  to  the  deceased,  or  entitled 
to  distribution  in  whole  or  in  part  of  such  estate,  may,  at  any  time 
after  the  expiration  of  one  year  from  the  issuance  of  letters  testa- 
mentary or  of  administration,  file  a  petition  in  the  matter  of  such 
estate,  praying  the  court  to  ascertain  and  declare  the  rights  of  all 
persons  to  said  estate  and  all  interests  therin,  and  to  whom  dis- 
tribution thereof  should  be  made.  The  case  is  most  important, 
from  any  view.  The  defendants,  claiming  to  be  collateral  kin- 
dred, are  numbered  by  the  hundred,  many  of  them  represented 
by  separate  counsel  of  great  ability  and  experience  in  the  law ;  the 
property  interests  involved  are  very  large;  the  trial  in  the  nisi 
prills  court  extended  continuously  through  the  greater  portion  of 
a  year;  the  facts  are  novel,  and  the  principles  of  law  applicable 
many  and  complicated. 


LEGITIM..MION    AND    ADOPTION.  311 

Plaintiff's  claim  is  based  upon  sections  230  and  1387,  respect- 
ively of  the  Civil  Code  of  California.  Section  230  reads  as  fol- 
lows ; — 

"Sec.  230.  The  father  of  an  illegitimate  child,  by  publicly 
acknowledging  it  as  his  own,  receiving  it  as  such,  with  the  con- 
sent of  his  wife,  if  he  is  married,  into  his  family,  and  otherwise 
treating  it  as  if  it  were  a  legitimate  child,  thereby  adopts  it  as 
such ;  and  such  child  is  thereupon  deemed  for  all  purposes  legiti- 
mate from  the  time  of  its  birth.  The  foregoing  provisions  of  this 
chapter  do  not  apply  to  such  an  adoption." 

Section  1387,  as  far  as  it  pertains  to  the  matters  involved  in 
this  litigation,  provides: — 

"Sec.  1387.  Every  illegitimate  child  is  an  heir  of  the  person 
who,  in  writing,  signed  in  the  presence  of  a  competent  witness, 
acknowledges  himself  to  be  the  father  of  such  child." 

As  a  result  of  the  trial,  the  court  filed  findings  of  fact,  and 
its  conclusions  of  law  based  thereon  are  to  the  effect  that  the 
plaintiff,  Florence  Blythe,  was  and  is  the  child  of  Thmas  H. 
Dlythe,  deceased  ;  that  said  Thomas  H.  Blythe  legally  adopted  her 
under  the  provision  of  section  230  of  the  Civil  Code ;  that  she  is 
his  lawful  heir,  and  the  only  person  entitled  to  have  and  receive 
distribution  of  the  estate  of  said  Thomas  H.  Blythe,  deceased. 

The  principles  of  law  and  the  facts  of  the  case  bearing  upon 
her  contention  under  these  respective  provisions  of  the  code  are 
entirely  dissimilar,  involving  a  separate  discussion ;  and  in  the 
construction  of  section  230,  our  investigation  also  necessarily 
divides  itself  into  two  distinct  branches. 

1.  Was  plaintiff  so  domiciled  with  relation  to  her  putative 
father's  domicile  as  to  have  rendered  any  action  of  his  looking  to 
adoption  available  for  that  purpose?  or,  placing  the  interrogatory 
in  the  clear  and  emphatic  language  of  appellants'  counsel  (to 
which  interrogatory  they  all  with  great  confidence  give  answer. 
Yes),  Was  she  so  domiciled  or  so  situated  that  she  could  not  be 
su\jject  to  the  laws  of  California,  and  be  by  those  laws  transmuted 
from  bastardy  to  legitimacy? 

2.  If  her  situation  endowed  her  with  the  capacity  for  legiti- 
mation, did  the  acts  of  Blythe  bring  her  within  the  requirements 
of  the  statute? 

The  facts  found  by  the  court  which  face  us  while  we  are  en- 
gaged in  a  consideration  of  the  first  branch  of  this  subject  may 
be  succinctly  and  substantially  stated  a;^  follows : — 

I.  That  plaintiff  was  born  in  England,  upon  December  18, 
1873,  and  was  the  issue  of  Thomas  II.  P.lythe  and  Julia  Perry; ' 


312  PRIVATE    INTERNATIONAL    LAW. 

2.  That  Julia  Perry  was  a  native  of  England,  domiciled 
therein,  and  continued  to  there  reside  until  one  month  after  the 
death  of  said  Blythe ; 

3.  That  plaintiff  remained  in  England  until  after  the  death 
of  Biythe,  when  she  came  to  California,  and  said  Blythe  was 
never  at  any  time  within  any  of  the  countries  of  Europe  after  the 
twenty-ninth  day  of  August,  1873; 

4.  That  said  Blythe  was  a  citizen  of  the  United  States,  and 
of  the  state  of  California,  domiciled  in  said  state,  and  died  intes- 
tate therein,  April  4,  1883,  leaving  surviving  him  no  wife,  no 
father,  no  mother,  and  no  child,  save  and  except  said  Florence 
Blythe,  the  plaintiff  herein ; 

5.  That  said  Thomas  H.  Blythe  and  said  Julia  Perry  never 
were  married,  and  said  plaintiff"  was  begotten  while  said  Blythe 
was  temporarily  sojourning  in  England,  and  was  born  after  said 
Blythe's  return  to  California,  and  that  said  Blythe  never  was  mar- 
ried. 

Before  passing  to  the  merits  of  the  discussion,  we  pause  a 
moment  to  say  that  the  verb  "adopts,"  as  used  in  section  230,  is 
used  in  the  sense  of  "legitimates,"  and  that  the  acts  of  the  father 
of  an  illegitimate  child,  if  filling  the  measure  required  by  that 
statute,  would  result,  strictly  speaking,  in  the  legitimation  of  such 
child,  rather  than  its  adoption.  Adoption,  properly  considered, 
refers  to  persons  who  are  strangers  in  blood ;  legitimation,  to  per- 
sons where  the  blood  relation  exists.  (See  law  dictionaries, — 
Bouvier's,  Black's,  Anderson's  and  Rapalje's.)  This  is  the  dis- 
tinguishing feature  between  adoption  and  legitimation,  as  recog- 
nized by  all  the  standard  law-writers  of  the  day  who  have  v,  ritten 
upon  the  subject ;  and  for  the  reason  that  the  text-writers  and  the 
decisions  of  courts,  to  which  we  shall  look  for  light  and  counsel, 
treat  the  subject  as  a  question  of  legitimation,  we  shall  view  the 
matter  from  that  stand-point. 

The  section  is  broad  in  its  terms.  It  contains  no  limitations 
or  conditions,  and  to  the  extent  of  the  power  vested  in  the  legis- 
lature of  the  state,  applies  to  all  illegitimates,  wherever  located 
and  wherever  born.  The  legislature  has  not  seen  fit  to  make  any 
exception  to  its  operation,  and  as  was  said  by  Taney,  C.  J.,  in 
Brezvcr  v.  Blongher,  14  Pet.  178,  when  considering  a  quite  simi- 
lar provision  of  a  statute:  "In  the  case  before  us,  the  words  are 
general,  and  include  all  persons  who  come  within  the  description 
of  illegitimate  children,  ....  and  r.Jien  the  legislature  speaks 
in  general  terms  of  children  of  that  description  without  making 


LEGITIMATION    AND    ADOPTION.  813 

any  exceptions,  we  are  bound  to  suppose  they  design  to  include 
the  whole  class." 

Bar.  in  his  work  on  International  Law  (p.  434),  says:  "Le- 
gitimation of  bastards,  either  by  subsequent  marriage  or  by  an 
act  of  the  government  {Rcscriplum  principis),  is  nothing  but  a 
legal  equalization  of  certain  children  illegitimately  begotten  with 
legitimate  children."  In  other  words,  the  object  and  effect  of 
section  230  is  to  change  the  status  and  capacity  of  an  illegitimate 
child  to  the  status  and  capacity  of  a  child  born  in  lawful  wedlock. 

This  case,  upon  its  facts,  presumably  stands  alone  in  legal 
jurisprudence,  for  counsel,  in  the  exercise  of  great  learning  and 
unexampled  industry,  have  failed  to  parallel  it.  We  have  here  a 
father  at  all  times  domiciled  in  the  state  of  California,  a  mother 
at  all  times  domiciled  in  England,  and  an  illegitimate  child  born 
in  England,  and  continuously  there  residing  until  the  death  of 
her  father  in  California.  As  to  the  eflfect  of  our  statutes  upon 
such  a  state  of  facts,  the  consideration  of  the  matter  of  domicile 
of  these  parties,  and  the  principles  of  law  applicable  thereto,  is  a 
most  injportant  element  to  its  proper  determination,  and  it  is  a 
source  of  some  satisfaction  to  be  able  to  say  that  there  are  ele- 
mentary principles  pertaining  to  this  subject  of  domicile,  even 
though  few  in  number,  upon  which  practically  all  the  text-writers 
stand  on  common  ground,  to  wit : — 

1.  The  domicile  of  the  mother  is  the  domicile  of  the  illegiti- 
mate child,  and  the  place  of  birth  of  the  child  is  an  immaterial 
clement. 

2.  In  a  case  of  legitiiuatio  per  subsequcns  matrimonium,  the 
place  of  marriage  does  not  afTect  the  question. 

3.  Legitimation  by  a  subsequent  marriage  depends  upon  the 
law  of  the  domicile  of  the  father;  Dicey  on  Domicile.  181.  and 
other  text-writers,  supported  by  many  authorities,  holding  that 
the  domicile  of  the  father  at  the  date  of  the  birth  is  the  vital  in- 
quiry and  other  authority  (Eraser  on  Parent  and  Child,  62;  Bar 
on  Incernational  Law,  434;  Savigny  on  Private  International 
Law,  302)  holding  that  tlie  domicile  of  the  father  at  the  date  of 
marriage  is  the  determinative  fact. 

Inasmuch  as  the  deceased,  Blythe,  was  domiciled  in  Califor- 
nia both  at  the  time  of  the  birth  of  the  child  and  at  the  time  he 
performed  the  acts  which  it  is  claimed  resulted  in  legitimation, 
this  question  does  not  become  an  issue  in  the  case,  and  we  are  not 
called  upon  to  dispel  the  clouds  of  doubt  that  envelop  it. 

The  contention  of  appellants  that  the  status  of  a  person  resid- 


SI 4  PRIVATE    INTERNATIONAL    LAW. 

ing  in  a  foreign  country  and  a  subject  thereof  cannot  be  changed 
by  acts  performed  in  Cahfornia,  under  a  provision  of  the  law  of 
our  state  legislature,  cannot  be  supported  as  a  rule  without  many 
exceptions,  and  to  the  extent  of  those  exceptions,  a  state  law 
niust  be  held,  by  its  own  courts  at  least,  to  have  extraterritorial 
operation.  And  this  principle  of  the  foreign  operation  of  state 
laws  even  goes  to  the  extent  that  in  many  instances  such  laws  are 
recognized  and  given  efifect  by  the  courts  of  that  particular  for- 
eign jurisdiction.  The  doctrine  of  extraterritorial  operation  of 
state  laws  is  fully  exemplified  in  the  case  of  Hoyt  v.  Thompson,. 
5  N.  Y.  340,  where  the  court  says :  "It  is  a  conceded  principle, 
that  the  laws  of  a  state  have  no  force,  propria  vigore,  beyond  its 
territorial  limits,  but  the  laws  of  one  state  are  ferquently  permit- 
ted by  the  courtesy  of  another  to  operate  in  the  latter  for  the  pro- 
motion of  justice,  where  neither  that  state  nor  its  citizens  will 
suffer  any  inconvenience  from  the  application  of  the  foreign  law. 
This  courtesy,  or  comity,  is  established,  not  only  from  motives 
of  respect  for  the  laws  and  institutions  of  the  foreign  countries, 
but  from  consideration  of  mutual  utility  and  advantage." 

The  case  of  Burton  v.  Burton,  i  Keyes,  359,  is  a  striking 
illustration  of  the  operation  of  a  law  of  the  United  States  in  affix- 
ing a  different  status  to  a  foreign  subject  resident  in  a  foreign 
country.  In  that  case,  after  plaintiff's  marriage  to  Burton  in  a 
foreign  land,  he  himself  being  a  foreign  resident  and  subject  at 
the  time,  he  emigrated  to  the  state  of  New  York,  was  naturalized, 
and  there  died.  Although  an  actual  resident  of  England  at  all 
times,  upon  the  death  of  her  husband  she  came  to  New  York,  and 
claimed  her  right  of  dower,  upon  the  ground  that  she  was  a  citi- 
zen of  the  United  States,  made  so  by  virtue  of  the  naturalization 
of  her  husband  under  a  general  act  of  Congress  to  that  efifect,  and 
her  claim  was  upheld.  In  conclusion,  the  court  uses  this  lan- 
guage :  '"It  is  said,  furthermore,  that  she  did  not,  by  residence, 
or  in  any  other  way,  assume  the  allegiance  of  the  United  States, 
or  give  her  assent  to  the  citizenship  conferred  by  the  act.  This, 
however,  was  not  necessary,  to  entitle  her  to  claim  its  benefits." 
In  Headman  v.  Rose,  63  Ga.  458,  the  same  question  was  again 
presented,  and  that  court  said :  "When  the  claim  was  first  pre- 
sented here  as  to  whether  Mrs.  Rose  could  claim  to  be  a  citizen 
of  the  United  States  under  the  provisions  of  that  act  of  Congress 
(having  never  been  in  the  United  States  until  after  the  death  of 
her  husband),  we  were  all  inclined  to  the  opinion  that  she  could 
not,  but  upon  a  more  careful  examination  of  that  statute,  in  the 


LEGITIMATION    AND    ADOPTION.  315 

light  of  the  interpretation  whicli  has  been  given  to  it  by  the 
supreme  court  of  North  Carolina  in  Ka)ie  v.  McCarthy,  63  N.  C. 
299,  and  by  the  court  of  appeals  of  New  York  in  Burton  v.  Bur- 
ton, I  Keyes,  371,  and  in  Kcllcy  v.  Owen,  7  Wall.  496,  in  which 
the  supreme  court  of  the  United  States  cites  the  case  of  Burton 
V.  Burton,  i  Keyes,  359,  approvingly,  we  hold  and  decide  that  if 
Mary  Rose  was  married  to  William  Rose,  the  intestate,  and  he 
was  a  naturalized  citizen  of  the  United  States,  then  she,  by  the 
terms  and  provisions  of  the  act  of  Congress  of  1855,  was  also  a 
citizen  of  the  United  States."  It  will  be  noticed  that  these  de- 
cisions are  not  based  upon  the  principle  that  the  domicile  of  the 
husband  was  the  domicile  of  the  wife,  and  that  consequently  she 
was  deemed  to  be  in  this  country  at  the  date  of  his  naturalization, 
and  therefore  came  under  the  operation  of  the  act,  but  they  rest 
upon  the  broad  principle  that  Congress  has  not  only  the  power 
to  say  what  aliens  shall  become  citizens  of  the  United  States,  but 
what  acts  shall  create  such  citizenship.  The  fact  that  these  cases 
bear  upon  the  political  status  of  the  party,  rather  than  upon  his 
civil  status,  does  not  weaken  their  force  as  authority  here.  In 
principle,  no  distinction  can  be  discerned  in  this  regard.  In  both 
cases  there  is  involved  an  exercise  of  the  same  sovereign  power. 
This  doctrine  has  been  carried  to  still  greater  lengths  in  criminal 
cases,  where  a  crime  has  been  committed  in  a  foreign  jurisdic- 
tion. In  the  Warrender  case,  2  Clark  &  F.  539,  Lord  Brougham 
remarked :  "But  it  mav  be  said  that  the  offense  beinsr  committed 
abroad,  and  not  within  the  Scotch  territory,  prevents  the  applica- 
tion to  it  of  the  Scotch  criminal  law.  To  this  it  may,  however,  be 
answered,  that  ^^here  a  person  has  his  domicile  in  a  given  coun- 
try, the  laws  of  that  country  to  which  he  owes  allegiance  may 
visit  even  criminal  offenses  committed  by  him  out  of  its  territory. 
Of  tliat  we  have  many  instances  in  our  own  jurisprudence;  mur- 
der and  treason  committed  by  Englishmen  abroad  arc  trial)le  in 
England,  and  punishable  here.  Nay,  by  the  bill  which  I  intro- 
duced in  181 1,  and  which  is  constantly  acted  upon,  British  sub- 
jects are  liable  to  be  convicted  of  felony  for  slave-trading,  in 
whatever  part  of  the  world  committed  by  diem." 
Section  215  of  the  Civil  Code  is  as  follows: — 
"Sec.  215.  A  child  born  before  wedlock  becomes  legitimate 
by  the  subsequent  marriage  of  its  parents." 

This  section  takes  a  wide  range ;  its  operation  is  not  confined 
within  state  lines ;  it  is  as  general  as  language  can  make  it ;  oceans 
furnish  no  obstruction  to  the  effect  of  its  wise  and  beneficent  pro- 


316  PRIVATE     INTEUNATIONAL    LAW. 

visions;  it  is  manna  to  the  bastards  of  the  world.    If  Blythe,  sub- 
sequent to  the  birth  of  plaintiff,  had  returned  to  England  and 
married  Julia  Perry,  such  marriage,  under  the  provision  of  law 
just  quoted,  ipso  facto,  would  have  resulted  in  the  legitimation  of 
Florence  Blythe.     Then,  in  answer  to  the  interrogatory  of  appel- 
lants already  noticed,  we  say  that  she  was  so  domiciled  that  by 
the  laws  of  California  she  could  have  been  changed  from  bastardy 
to  legitimacy.     Our  statute,  conjoined  with  principles  of  interna- 
tional law,  would  have  changed  her  bastardy  to  legitimacy  in  the 
world  at  large;  and  regardless  of  international  law,  and  regard- 
less of  all  law  of  foreign  countries,  our  statute  law  alone  would 
have  made  her  legitimate  in  the  world  at  large,  whenever  and 
however  that  question  should  present  itself  in  the  courts  of  Cali- 
fornia.    And  we  also  have  here  a  most  striking  illustration  of 
the  extraterritorial   operation   of   California   law.      We  have   the 
effect  of  a  statute  of  this  state  attaching  to  a  state  of  facts  where 
the  mother  and  child  were  never  in  California,  but  residing  and 
domiciled  in  England,  and  the  marriage  taking  place  in  Engiand ; 
and  California  law,  as  stated,  has  the  effect  upon  that  child  to  give 
it  a  dift"erent  domicile,  and  completely  change  its  status.     Such 
would  not  only  be  the  effect  of  this  law  upon  the  child  viewed  by 
California  courts,  but  such  would  be  its  effect  viewed  by  the  courts 
of  England,  where  the  child  was  domiciled,  and  that,  too,  notwith- 
standing no  provisions  of  law  are  there  found  for  the  legitima- 
tion of  bastards.     This  assumption  of  Blythe's  marriage  to  Julia 
Perry,  in  its  facts,  forms  an  exact  photograph  of  the  celebrated 
case  of  Munro  v.  Munro,  found  m  i  Rob.  App.  492, — a  case  crys- 
tallizing the  judicial  thought  of  the  age  upon  the  subject,  and 
commanding  the  respect  of  all  writers  and  judges  upon  the  law 
of  domicile.     We  shall  make  copious  references  and  indulge  in 
liberal  quotations  from  that  decision,  for  its  legal  soundness  never 
has  been  questioned,  and  as  we  view  the  subject,  it  casts  a  flood 
o^  light  upon  many  matters  involved  in  the  investigation  at  hand. 
Munro,  a  Scotch  gentleman  of  fortune  domiciled  in  Scotland, 
which  upon  a  visit  to  London,  cohabited  with  an  Englishwoman 
•domiciled  in  England,  and  a  child  was  the  result  of  such  cohab- 
itation.    He  subsequently  married   the  woman   in  England,  and 
it  was  held,  under  the  law  of  Scotland,  by  the  House  of  Lords  sit- 
ting as  a  court  of  appeal  (although  if  it  had  been  a  case  appealed 
from  the  English  courts,  the  decision  would,  undoubtedly,  have 
been  the  same),  that  such  child  was  thtieby  legitimattJ,  Scottish 
law  providing  for  legitimation  per  siihsequcns  matrimonium.     It 


LEGITIMATION    AND    ADOPTION.  317 

was  there  said:  "ft  is  inaintained  that  the  pursuer  having  been 
born  in  England  of  an  Englishwoman  not  married  at  the  time 
of  the  birth,  she  was  born  an  illegitimate  child  ;  that  that  status  of 
illegitimacy  was  indelible  by  the  law  of  England  ;  and  that  a  sub- 
sequent marriage,  even  taking  it  to  be  a  Scotch  marriage,  could 
not  legitimate  the  child,  or  wipe  off  the  indelible  stain  of  illegiti- 
macy. We  cannot  assent  to  this  proposition,  and  with  all  pos- 
sible deference  to  any  different  opinions,  w^e  know  of  no  author- 
ity for  it  in  the  law  of  Scotland,  or  among  the  jurists  and  writers 
on  general  law,  in  the  application  here  attempted  to  be  made  of  it. 
....  To  say,  again,  that  because  the  child  was  born  in  Eng- 
land of  and  English  mother,  her  illegitimacy  is  indelible,  if  this 
means  that  it  is  indelible  by  the  law  of  England,  and  under  the 
law  of  England,  is  to  say  no  more  than  that  the  law  of  England 
has  not  adopted  the  rule  of  legitimation  per  subsequens  uiatriuio- 
niiiiii;  but  if  it  be  meant  that  because  a  child  was  born  in  England 
it  cannot  become  legitimate  in  Scotland  by  a  Scotch  marriage,  is 
a  question  to  be  determined  by  the  law  of  Scotland,  it  is  a  petitio 
principi  for  which  there  is  no  authority  whatever  in  that  law. 
....  We  are  here  in  a  .Scotch  question  and  in  a  Scotch  court, 
applying  a  plain  rule  of  our  law,  and  unless  that  law  says  that  if 
a  child  be  born  in  England  it  shall  not  have  the  benefit  of  the  rule, 
we  do  not  see  how  it  is  at  all  material  that  it  could  not  enjoy  it  if 
the  law  of  England  were  to  be  applied  to  the  case ;  but  we  know 
of  no  exception  in  the  law  of  Scotland,  nor,  as  far  as  we  are  in- 
formed, is  there  any  such  exception  recognized  in  the  law  of  any 
country  which  holds  the  principle  of  legitimation  per  subsequens 
inairinioniuni.  We  are  not  here  giving  any  opinion  on  a  point 
about  which  it  does  not  belong  to  us  to  form  any  judgment.  We 
are  not  inquiring  what  the  law  of  England  might  decide  if  the 
pursuer,  or  any  person  similarly  situated,  were  making  a  claim 
in  an  English  court  of  law   in  respect  of  property  within  their 

juris'^'iction We  are  aware  that  conflicts  of  law  may  take 

place,  and  there  is  no  help  for  it  when  they  do  occur ;  but  the  ques- 
tion before  us  is  a  purely  Scotch  question,  to  be  ruled  by  general 
principles,  no  doubt,  but  still  with  reference  to  tjie  law  of  Scot- 
land in  that  particular  point,  and  we  cannot,  in  consistency  with 
the  established  principles  of  that  law.  hold  that  this  pursuer  could 
not  become  legitimated  by  the  marriage  of  her  parents,  when  or 
wheresoever  she  may  have  been  born.  It  appears  to  us  to  be  very 
clear  that  the  circumstance  of  the  mothe  being  English  adds  noth- 
ing at  all  to  the  supposed  difficulty  in  the  place  of  the  jnirsuer's 


318  PRIVATE    INTERNATIONAL    LAW. 

birth.  She  \vas  certainly  'llegitimate  by  the  law  of  England,  and 
by  the  law  of  Scotland  also,  at  the  time  of  her  birth,  and  she  would 
have  been  so  equally  though  her  mother  had  been  a  Scotchwoman. 
Lord  IMackenzie  said:  'I  cannot  help  entertaining  doubt  whether 
the  indelibility  of  English  bastardy  has  any  meaning  beyond  this, 
that  an  English  bastard  is  not  legitimated  by  an  English  mar- 
riage  But  suppose  it  were  true  that  English  bastardy  is 

indelible,  not  only  against  a  marriage  in  England,  but  against  a 
marriage  all  the  world  over, — I  say,  suppose  there  was  produced 
a  statute  providing  and  declaring  that  an  English  bastard  born 
in  England  should  remain  a  bastard  all  the  world  over,  notwith- 
standing anything,  that  could  be  done  in  any  country, — I  ask, 
could  wo  give  it  effect?  Could  we  acknowledge  the  authority  of 
such  a  statute^  I  think  we  will  be  bound  to  say  that  the  English 
Parliament  might  rule  the  fate  of  the  bastards  in  England,  but 
that  its  laws  were  not  entitled  to  extend  to  other  countries,  and 
that  there  was  no  principle  of  the  law  of  nations  which  would 
give  effect  to  such  a  statute.'  "  In  summing  up  his  conclusions, 
the  Lord  Chancellor,  after  holding  Munro  to  be  domiciled  in  Scot- 
land, said :  '"If  that  be  a  correct  conclusion  from  the  evidence,  it 
follows  that  the  appellant  in  Munro  v.  Muiiro,  being  the  child  of 
a  domiciled  Scotchman,  had  at  the  moment  of  her  birth  a  capacity 
of  being  legitimatized  by  the  subsequent  marriage  of  her  parents 
for  all  civil  purposes  in  Scotland,  and  that  she,  accordingly,  by 
their  subsequent  marriage  in  1801,  became  legitimated,  and,  as 
such,  capable  of  succeeding  to  the  property  in  question." 

The  foregoing  views  of  learned  judges  are  in  direct  conflict 
with  the  arguments  of  appellants'  counsel  in  this  case ;  and  such 
views  were  declared  to  be  the  law,  after  able  arguments  there 
made  upon  the  same  lines  as  here  presented.  Appellants  insist 
that  the  domicile  of  the  child  irrevocably  fixes  that  child's  status. 
In  this  case,  subsequent  to  the  child's  birth,  Julia  Perry  married 
a  domiciled  Englishman ;  hence  her  domicile  was  permanently 
established  in  England,  and  for  that  reason  the  child's  domicile, 
being  the  mother's  domicile,  was  permanently  established  there. 
Under  appellants'  reasoning,  this  state  of  facts  would  forever 
debar  the  child  from  legitimation,  for  even  its  presence  in  Cali- 
fornia would  avail  nothing  as  against  its  English  domicile.  If 
such  be  good  law,  section  226  of  the  Civil  Code,  expressly 
authorizing  the  adoption  of  minors  of  other  states,  is  bad  law,  for 
it  is  squarely  in  conflict  with  those  views. 

We  find  in  Story's  work  upon  Conflict  of  Laws  (sec.  105  a) 


LEGITIMATION    AND    ADOPTION.  319 

the  following:  "6.  As  to  issue  born  before  the  marriage,  if  by 
the  law  of  the  country  where  they  are  born  they  would  be  legiti- 
mated by  the  subsequent  marriage  of  their  parents,  they  will  by 
such  subsequent  marriage  (perhaps  in  any  country,  but  at  all 
events  in  the  same  country)  become  legitimate,  so  that  this  char- 
acter of  legitimacy  will  be  recognized  in  every  other  country.  If 
illegitimate  there,  the  same  character  will  belong  to  them  in  every 
other  country."  But  Judge  Story's  citations  in  its  support  do  not 
clearly  bear  him  out,  and  legal  authorhy  to  the  effect  that  the  place 
of  birth  forms  no  element  in  the  case  vastly  preponderates. 

We  have  in  Loring  v.  Thorndike,  5  Allen,  257,  a  case  involv- 
ing additional  elements,  and  therefore  additional  complications, 
€ven  to  those  found  in  the  ]\Iunro  case.  The  man  was  domiciled 
in  Massachusetts.  The  woman  was  domiciled  in  Mayence.  The 
illegitimate  children  were  born  in  Frankfort-on-the-Main,  and  the 
marriage  occurred  in  that  city.  To  accomplish  legitimation,  the 
Massachusetts  law  required  not  only  a  subsequent  marriage,  but 
a  subsequent  ackno'xledgcment  of  the  child.  Upon  this  state  of 
facts,  and  this  provision  of  law,  the  child  was  held  legitimate  by 
the  Massachusetts  court,  even  though  the  acts  of  acknowledg- 
ment occurred  in  a  foreign  country.  In  the  case  of  In  re  Grove, 
L.  R.  40  Ch.  Div.  216,  Lord  Chief  Justice  Cotton  said:  "What  is 
really  necessary,  I  think,  is,  that  the  father  should  at  the  time  of 
the  birth  of  the  child  be  domiciled  in  the  country  allowing  legiti- 
mation, so  as  to  give  to  the  child  the  capacity  of  being  made 
legitimate  by  a  subsequent  marriage ;  but  it  is  the  subsequent  mar- 
riage wliich  gives  the  legitimacy  to  the  child,  who  has  at  its  birth, 
in  consequence  of  its  father's  domicile,  the  capacity  of  being  made 
legitimate  by  a  subsequent  marriage."  In  the  same  case.  Lord 
Justice  Fry  stated  :  "The  appellant  claims  through  Sarah  Thome- 
gay,  who  was  born  in  1744.  in  this  country  [England],  and  was 
an  illegitimate  child  of  Marc  Thomegay  and  Martha  Powis.  At 
bir.h  that  child  took  the  domicile  of  its  mother,  and  it  took  the 
status  of  illegitimacy  according  to  the  law  of  the  domicile  of  its 
mother,  and  it  took  also  the  capacity  to  change  that  status  of  ille- 
gitimacy for  one  of  legitimacy,  provided  that,  according  to  the 
law  of  the  domicile  of  the  father,  the  subsequent  marriage  would 
work  legitimation.  The  position  of  such  a  child,  therefore,  is 
curious,  taking  domicile  and  status  from  the  mother,  but  taking 
the  potentiality  of  changing  its  status  from  its  putative  father." 
In  the  case  oi  Shcdden  v.  Patrick,  i  Macq.  535,  the  t;ither  being 
domiciled  in  the  state  of  New  York  at  the  date  of  the  child's  birth, 


320  PRIVATE    INTERNATIONAL    LAW. 

and  there  oeing  no  law  of  legitimation  in  New  York,  the  child 
was  declared  illegitimate  by  the  English  courts. 

Appellants'  counsel  confidently  insist  that  Ross  v.  Ross,  129 
Mass.  243,  ^y  Am.  Rep.  321,  is  valuable  as  an  authority  to  support 
their  views.  After  a  careful  examination  of  the  opinion  in  that 
case,  we  are  unable  to  preceive  its  force  as  authority  here.  A 
child  was  legally  adopted  in  Pennsylvania.  The  adoptive  parent 
removed  with  the  child  to  Massachusetts,  where  the  father  be- 
came domiciled,  and  there  died,  leaving  real  estate  in  that  com- 
monwealth. The  litigation  arose  upon  a  question  as  to  wiio  was 
entitled  to  inherit,  and  the  court  said:  "We  are  therefore  of  the 
opmion  that  the  legal  status  of  the  child  of  intestate,  once  acquired 
by  the  demandant  under  a  statute  and  by  a  judicial  decree  of  the 
state  of  Pennsylvania,  while  the  parties  were  domiciled  there,  con- 
tinued after  their  removal  into  this  commonwealth,  and  that  by 
virtue  thereof  the  demandant  is  entitled  to  maintain  this  action." 
Respondent's  position  in  this  case  controverts  no  principle  of  law 
there  declared,  and  it  is  difficult  to  see  how  the  court  could  have 
arrived  at  a  different  conclusion.  The  judgment  would  have 
been  the  same  if  the  father  had  never  changed  his  domicile  to 
Massachusetts,  and  probably  the  same  if  there  had  been  no  law 
of  adoption  whatever  in  that  state.  Miller  v.  Miller,  91  N.  Y. 
315,  43  Am.  Rep.  669,  in  principle,  seems  to  have  been  that  char- 
acter of  case,  and  the  same  conclusions  were  there  arrived  at  by 
the  court.  In  the  celebrated  case  of  Birttvhisfie  v.  Vardill,  2 
Clark  &  F.  840,  to  which  the  learned  chief  justice  refers  in  his 
opinion  in  the  Ross  case,  the  decision  would  have  undoubtedly 
been  in  line  with  Ross  v.  Ross,  129  Mass.  243,  2)7  Am.  Rep.  321, 
if,  in  lieu  of  the  Statute  of  Merton,  England's  law  of  descent  had 
been  similar  to  the  Massachusetts  provision.  The  case  of  Foster 
V.  Waterman,  124  Mass.  592,  involves  nothing  but  a  single  ques- 
tion of  statutory  construction,  and  in  no  manner  supports  the 
proposition  that  a  resident  of  one  state  cannot  adopt  a  child  under 
the  adoption  laws  of  another  state,  where  such  child  is  domiciled, 
but  Appeal  of  Wolf,  13  Alt.  Rep.  760,  does  hold  directly  to  the 
contrary  of  such  contention. 

The  doctrine  of  indelibility  of  bastardy  in  England  is  not 
correct  in  its  broadest  sense,  for  it  is  in  the  power  of  Parliament 
to  legitimate  bastards  at  any  time.  Neither  is  the  rule  universal 
that  a  cliild  legitimate  in  one  country  is  legitimate  in  all  the  world. 
This  principle  of  different  status  in  different  countries  finds  a 
striking  illustration  in  Lolly's  case,  reviewed  and  dissented  from 


LEGITIMATION    AND    ADOI'TION.  321 

by  Lord  Brougham  in  IVarrcndcr  v.  Warrcndcr,  2  Clark  &  F, 
539.  Ill  that  case  the  facts  flisclose  that  Lolly  was  married  in 
England,  divorced  in  Scotland,  and  upon  his  return  to  England 
and  making  a  second  marriage,  he  was  then  tried  and  convicted 
of  bigamy.  Here  we  have  a  state  of  facts  where,  under  the  re- 
spective laws  of  England  and  Scotland,  Lolly,  after  his  divorce 
and  prior  to  his  second  marriage,  was  a  married  man  in  England 
and  an  unmarried  man  in  Scotland,  and  after  his  second  marriage 
he  had  a  lawful  wife  in  Scotland  and  a  different  lawful  wife  in 
England,  thus  having  two  lawful  wives  at  the  same  time.  It  can 
hardly  be  said  that  Lolly's  status  was  the  same  in  both  countries. 
A  similar  principle  is  applied  to  the  legitimacy  of  children  by 
subsequent  marriage.  The  provisions  of  section  215  would  oper- 
ate upon  and  legitimate  a  child  born  of  a  father  who,  at  the  time 
of  its  conception  and  birth,  was  the  husband  of  another  woman, 
or  would  apply  to  an  incestuous  bastard.  Such  was  expressly 
declared  to  be  the  law  under  a  similar  provsion  of  a  state  statute 
in  the  case  of  Haivbecker  v.  Hatvbeckcr,  43  Md.  516,  the  court 
saying:  "No  doubt,  the  legislature,  in  thus  mitigating  the  severe 
rule  of  the  common  law,  intended  to  hold  out  to  the  sinning  par- 
ents an  inducement  to  marry,  and  thus  put  a  stop  to  the  mischiefs 
of  further  illicit  intercourse  between  them,  but,  in  our  opinion, 
the  main  purpose  and  intent  of  the  enactment  zve  are  now  con- 
sidering zvas  to  remove  the  taint  and  disabilities  of  bastardy  from 
the  unoffending  children  zi'henever  their  parents  did  marrv,  zvith- 
out  regard  to  the  deepness  of  guilt  on  the  part  of  their  parents 
in  which  they  zvere  conceived  and  born."  Such  a  child,  under 
the  canon  law,  would  be  deemed  an  adulterine  or  incestuous  bas- 
tard, incapable  of  legitimation,  and  in  the  courts  of  certain  coun- 
tries where  the  law  controls  would  not  be  recognized  as  legiti- 
mate. Thus  is  presented  a  case,  and  by  no  means  an  anomalous 
one,  wl-.ere  the  child  would  be  legitimate  in  California,  and  ilie- 
gitimate  by  the  laws  of  various  other  countries.  (See  Eraser 
on  Parent  and  Child,  56  subd.  10.) 

We  have  quoted  thus  extensively  from  the  authorities  upon 
the  subject  of  domicile  as  specially  bearing  upon  the  question  of 
legitimatii  per  subseqnens  viatrimoniiim,  for  the  reason  that  we 
are  unable  to  perceive  any  difference  in  the  general  principles  of 
law  bearing  upon  that  character  of  legitimation  and  in  those  prin- 
ciples bearing  upon  other  forms  of  legitimation  authorized  b\ 
the  same  statute.  The  only  distinction  claimed  by  appellants  is, 
that   legitimation    founded    upon    subsequent   marriage    is   based 

21 


322  PRIVATE    INTERNATIONAL    LAW. 

upon  the  fiction  of  law  that  a  previous  consent  existed,  and  the 
marriage  related  back  to  that  time.     Upon  this  point  it  would 
seem  all-sufficient  to  say  that  our  statute  does  not  recognize  such 
a  fiction,  and  its  effective  operation  in  no  wise  depends  upon  the 
assumption  of  its  presence.     Times  are  not  what  they  once  were, 
and  we  live  in  an  age  too  practical  to  build  our  law  upon  the  un- 
stable foundation  of  fictions.     In  Biriivhistle  v.   Vardill,  2  Clark 
&  F.  840,  Tyndall,  L.  C.  J.,  in  speaking  upon  this  question,  says : 
'Tothier,  on  the  other  hand,  when  he  speal<s  of  the  effect  of  a 
subsequent  marriage  in  legitimating  children  born  before  it,  dis- 
claims the  authority  of  the  canon  law,  nor  does  he  mention  any 
fiction  of  an  antecedent  marriage,  but  rests  the  effect  upon  the 
positive  law  of  the  country.     He  first  instances  the  custom  of 
Troyes,  and  then  adds    :    .    .    .  that  it  is  a  common  right,  received 
throughout  the  whole  kingdom."     Schouler  on  Domestic   Rela- 
tions (sec.  226)  says:     "The  principle  to  which  the  law  of  legis- 
lation per  snhsequens  matrimonium  is  to  be  referred  has  been  a 
subject  of  controversy.    The  canonists  base  the  law.  not  on  gen- 
eral viev.'s  of  expediency  and  justice,  but  upon  a  fiction  which 
they  adopted  in  order  to  reconcile  the  new  law  with  established 
rules ;  for,  assuming  that,  as  a  general  rule,  children  are  not  legiti- 
mate unless  born  in  lawful  wedlock,  they  declare  that  by  a  fiction 
of  law  parents  were  married  when  the  child  was  born.      Such 
reasoning,  by   no   means   uncommon   when   the   wise   saw    more 
clearly  what  was  right  than  why  it  was  so,  has  not  stood  the  test 
of  modern  logic,  and  the  Scotch  courts  have  placed  the  rule  once 
more  where  its  imperial  founders  left  it,  namely,  on  the  ground 
of  general  policy  and  justice." 

Upon  principle,  no  distinction  can  be  made  between  the  rules 
of  law  applicable  to  these  various  forms  of  legitimation.  Many 
of  the  states  of  this  Union,  in  order  to  effect  those  ends,  require, 
in  addition  to  a  subsequent  marriage,  that  the  father  (in  some 
state,  both  father  and  mother)  shall  also  acknowledge  the  child. 
This  is  the  case  of  Loring  v.  Thorndikc,  5  Allen,  257,  where  the 
marriage  not  only  took  place  in  foreign  territory,  but  as  is  said 
in  Ross  V.  Ross,  i2C)  Mass.  259,  the  facts  of  the  acknowledgment 
occurred  in  a  foreign  jurisdiction.  Thus  Massachusetts  law  re- 
quired marriage  and  acknowledgment,  and  invoked  the  rule  of 
domicile  of  the  father  to  establish  the  capacity  of  the  child  for 
legitimation.  Section  2405  of  the  Revised  Code  of  Alabama 
allows  legitimation  of  a  bastard  child  simply  by  acknowledgment 
of  the  father  in  writing,  certified  and  recorded.     No  consent  of 


LEGITIMATION    AND    ADOPTION.  323 

the  mother  is  required  ;  no  notice  to  or  consent  of  the  child  is  de- 
manded. If  such  a  statute  were  found  within  the  hds  of  the 
Civd  Code  in  this  state,  under  tlie  facts  of  this  case  as  they  ap- 
pear upon  the  question  of  domicile,  Blythe,  by  following  the  re- 
quirements of  the  provision  of  law  there  laid  down,  could  legiti- 
mate his  illegitimate  child.  California  law  (Civ.  Code,  sec.  21 5 j 
declares  tliat  marriage  ipso  facto  results  in  legitimation,  and  sec- 
tion 230  declares  that  acknowledgment  accompanied  by  certain 
other  acts  shall  result  in  legitimation.  If  the  principle  of  the 
domicile  of  the  father  is  good  law  where  marriage  and  acknowl- 
edgment are  both  required  to  accomplish  the  result,  that  principle 
is  no  less  good  law  when  applied  to  marriage  alone  under  section 
215,  or  when  applied  to  acknowledgment  alone  under  the  Alabama 
Code,  or  when  applied  to  acknowledgment  accompanied  by  other 
acts  under  section  230  of  the  Civil  Code  of  this  state. 

Dicey  says  (p.  192)  :  "Questiom  What  is  the  effect,  ac- 
cording to  English  law,  of  a  person  being  made  legitimate  by  the 
authority  of  a  foreign  sovereign?  Suppose  that  a  person  born 
illegitimate  is  legitimated  by  a  decree  of  the  Czar  of  Russia ;  will 
such  a  person  be  held  legitimate  here?  There  is  no  English 
authority  on  the  subject.  The  most  probable  answer  is  (it  is  con- 
ceived), that  the  effect  of  such  a  decree  would,  like  the  effect  of 
a  subsequent  marriage  of  the  parents,  depend  on  the  domicile  of 
such  person's  father  at  the  time  of  the  birth.  Suppose,  that  is  to 
say,  that  D,  the  child's  father,  were  domiciled  in  Russia  at  the 
time  of  the  child's  birth,  the  decree  would  have  the  effect  of  mak- 
ing the  child  legitimate  in  England.  A  person,  on  the  other 
hand,  born  of  a  father  domiciled  in  England  could  not  be  made 
legitimate  here  by  the  force  of  any  foreign  law." 

Bar,  in  his  International  Law,  has  discussed  this  identical 
question  at  length,  although  it  can  scarcely  be  said  to  be  even 
incidentally  mentioned  in  the  works  of  either  Savigny.  Foote, 
Phillimore,  or  Schaftner.  He  says  (sec.  198)  :  "In  what  we 
have  said  we  have  proceeded  on  the  footing  that  legitimation,  if 
the  consent  of  the  child  be  validly  given,  is  dependent  solely  on 
the  personal  law  of  the  father,  and  that,  therefore,  if  this  law 
allows  legitimation  by  an  act  of  the  head  of  the  state,  it  matters 
not  to  inquire  whether  some  other  legal  system,  in  particular  the 
personal  law  which  the  child  has  hitherto  enjoyed,  recognizes  this 
legitimation ;  but  that,  on  the  contrary,  legitimation  per  rescrip- 
tnm  is  to  be  regarded  in  international  .aw  on  exactly  the  same 
footing  as  legitimation  per  subseqnens  matrimoninm.     This  opin- 


324  PRIVATE    INTERNATIONAL    LAW. 

ion,  which,  as  we  think,  is  the  prevaiHng  opinion  in  German  juris- 
prudence, and  in  which,  too,  Fiore  (sec.  149),  PhiUimore  (sec. 
542),  and  Wharton  (sec.  249)  concur,  has,  however,  often  been 
disputed.  In  the  first  place,  it  has  been  said  that  an  act  of  that 
kind  by  a  sovereign  must  necessarily  have  its  operation  confined 
to  the  dominion  of  that  sovereign,  for  he  has  no  authority  be- 
yond these  limits;  but  if  it  be  true,  generally,  that  the  personal 
law  of  the  father  is  the  rule,  that  law  must  be  allowed  to  say  that 
legitimation  can  take  place  by  means  of  an  act  of  that  kind.  The 
legitimation  is  to  be  recognized,  not  because  the  sovereign  is  to 
exercise  sovereign  rights  in  another  country,  but  because  the  per- 
sonal law  is  to  have  effect  there.  The  opposite  opinion,  which  is 
held  by  older  writers,  is  no  doubt  explained,  and  to  some  extent 
justified,  by  the  imperfect  legal  capacity  which  in  the  middle  ages, 
and  in  many  territories  down  to  later  times,  clung  to  the  bastard, 
especially,  too,  as  the  sole  result  of  legitimation,  even  in  the  ter- 
ritory of  the  sovereign  who  bestowed  it,  was  in  many  cases 
merely  to  withdrav^^  the  estate  of  the  person  so  legitimated,  upon 

his  death,  from  the  grasp  of  his  sovereign,  etc But,  in  the 

second  place,  the  more  modern  French  school,  while  they  reject 
the  view  of  the  older  writers  as  to  the  effect  of  the  legitimation 
being  necessarily  confined  to  the  territory  of  the  sovereign  who 
bestows  it,  refuse  to  recognize  this  kind  of  legitimation,  unless  it 
is  also  recognized  in  the  personal  law  which  the  child  has  hitherto 
enjoyed.  In  this  way,  one  who  has  hitherto  been  a  French  child, 
in  respect  that  the  Civil  Code  has  never  sanctioned  legitimation 
per  rcscripinm,  can  never  be  legitimated  by  the  act  of  a  foreign 
sovereign.  But  Laurent,  in  arguing  in  support  of  this  doctrine 
that  legitimation  touches  the  status  of  persons,  and  that  this  status 
must  be  determined  everywhere  of  Frenchmen  by  the  law  of 
France,  proves  too  much.  This  rule  would  have  to  hold,  also, 
in  the  case  of  legitimation  by  subsequent  marriage,  so  that  in 
this  case,  also,  the  personal  law  of  the  child  would  be  the  only 
rule.' 

In  this  connection,  and  as  bearing  directly  and  emphatically 
upon  the  general  principles  involved  in  the  solution  of  the  impor- 
tant question  presented  by  this  branch  of  the  case,  we  again  quote 
from  Bar  (sec.  194)  :  "If  the  personal  law  of  the  child  requires 
more  conditions  to  be  observed  before  it  will  pronounce  that  a 
chila  has  been  legitimated,  the  reason  of  that  is,  not  any  anxiety 
for  the  interest  of  the  child,  so  much  as  for  that  of  the  father  and 
his  family,  e.  g.,  the  other  children,  hi:  collateral  relations;  but 


LEGITIMATION    AND    ADOPTION.  325 

the  state,  to  which  the  child  has  up  to  that  moment  helonj^ed,  has 
no  interest  in  that  matter,  and  if  that  legal  system  which  is 
charged  with  the  protection  of  the  family  is  willing  to  hold  the 
child  legitimated,  there  is  in  truth  no  conflict  between  the  two 
systems.  That  system  to  which  the  child  has  hitherto  belonged 
says :  'If  the  father  belonged  to  me,  I  would  not  hold  the  child  to 
be  legitimated.'  That  involved  no  contradiction  of  the  other  sys- 
tem, which  says:  'Since  the  father  belongs  to  me,  I  do  hold  the 
child  to  be  legitimated."  No  doubt  we  must  assume  that  assent 
of  the  child  is  given  in  due  legal  form,  for  legitimation  can  only 
take  place  against  the  child's  wish  if  the  personal  law  of  the  child 
forces  that  upon  him  or  her ;  but  in  by  far  the  greater  number  of 
cases  it  will  be  beyond  all  doubt  that  the  legitimation  is  advantage- 
ous to  the  child,  and  the  child  or  its  guardian  can  subsequently 
signify  its  approval  of  and  found  upon  it." 

Legitimation  is  the  creature  of  legislation.  Its  existence  is 
solely  dependent  upon  the  law  and  policy  of  each  particular  sov- 
ereignty. The  law  and  policy  of  this  state  authorize  and  en- 
courage it,  and  there  is  no  principle  upon  which  California  law 
and  policy,  wdien  invoked  in  California  courts,  shall  be  made  to 
surrender  to  the  antagonistic  law  and  policy  of  Great  Britain.  It 
was  said  in  Munro  v.  Mnnro,  i  Rob.  App.  492 :  "We  are  here  in 
a  Scotch  question  and  in  a  Scotch  court,  applying  a  plain  rule  of 
our  law,  and  unless  that  law  says  that  if  a  child  be  born  in  Eng- 
land it  shall  not  have  the  benefit  of  the  rule,  we  do  not  see  how 
that  it  is  at  all  material  that  it  could  not  enjoy  it  if  the  law  of 
England  were  to  be  applied  to  the  case" ;  and  again :  "We  are  not 
inquiring  what  the  law  of  England  might  decide  if  the  person 
were  making  a  claim  in  an  English  court  of  law  in  respect  of  prop- 
erty within  their  jurisdiction."  And  we  say  here,  plaintiff  was  the 
child  of  Blythe,  who  was  a  domiciled  citizen  of  the  state  of  Cali- 
fornia. She  founds  her  claim  ui:)on  the  statutes  of  this  state,  and 
is  novv'  here  invoking  the  jurisdiction  of  the  courts  of  this  state.  It 
is  a  question  of  California  law  to  be  construed  in  California  courts, 
and  we  see  nothing  in  our  constitution  or  statutory  law,  or  in  in- 
ternational law,  to  have  prevented  Blythe  from  making  the  jilain- 
tiff  his  daughter  in  every  sense  that  the  word  implies.  In  conclu- 
sion, we  hold  that  Blythe  being  domiciled  in  the  state  of  Califor- 
nia both  at  the  time  of  the  birth  of  plaintiflf  and  at  the  time  he  per- 
formed the  acts  which  it  is  claimed  resulted  in  the  legitimation 
of  plaintiff,  and  California  law  authorizing  the  legitimation  of 
bastards  bv  the  doing  of  certain  acts,  it  follows  that   Florence 


326  PRIVATJ    INTERNATIONAL    LAW. 

Bhthe,  the  plaintiff,  at  all  times  was  possessed  of  a  capacity  for 
legitimation,  nnder  section  230  of  the  Civil  Code  of  this  state. 

We  pass  to  an  examination  of  the  second  branch  of  the  dis- 
cussion involved  in  the  consideration  of  section  230;  namely,  if 
plauitiff" s  situation  endowed  her  with  the  capacity  for  legitima- 
tion, did  the  acts  of  Blythe  bring  her  within  the  requirements  of 
the  statute^  Those  requirements  are:  i.  He  shall  publicly  ac- 
knowledge the  child  as  his  own ;  2.  He  shall  receive  it  as  his  child, 
with  the  consent  of  his  wife,  if  he  is  married,  into  his  family; 
3.  He  shall  otherwise  treat  it  as  if  it  were  a  legitimate  child. 

As  to  these  matters,  the  trial  court  found  in  detail  the  facts 
to  be,  that  Blythe  had  fulfilled  every  requirement  of  the  statute. 
These  findings  are  strenuously  attacked  as  being  unsupported  by 
the  evidence,  and  we  are  called  upon  to  pass  upon  its  sufficiency 
ui  this  regard. 

This  section  of  the  code  is  entitled  to  a  liberal  construction, 
because  section  4  provides :  "The  rule  of  the  common  law,  that 
statutes  in  derogation  thereof  are  to  be  strictly  construed,  has  no 
application  to  this  code.  The  code  establishes  the  law  of  this 
state  respecting  the  subjects  to  which  it  relates,  and  its  provi- 
sions ....  are  to  be  liberally  construed,  with  a  view  to  effect 
its  objects  and  to  promote  justice."  By  virtue  of  this  provision, 
the  court,  in  the  case  of  In  re  Jessup,  81  Cal.  419,  has  expressly 
declared  that  this  section  shall  have  a  liberal  construction,  but, 
as  there  said,  "liberal  construction  does  not  mean  enlargement  or 
restriction  of  a  plain  provision  of  a  written  law.  If  a  provision 
of  the  code  is  plain  and  unambiguous,  it  is  the  duty  of  the  court 
to  enforce  it  as  it  is  written.  If  it  is  ambiguous  or  doubtful,  or 
susceptible  of  different  constructions  or  interpretations,  then  such 
liberality  of  construction  is  to  be  indulged  in  as,  within  the  fair 
interpretation  of  its  language,  will  effect  its  apparent  object  and 
promote  justice.  ' 

Did  Blythe  acknowledge  the  plaintiff  to  be  his  own  child? 
The  word  "acknowledge"  has  no  technical  meaning,  and  in  its 
ordinary  acceptation  is  defined,  by  Webster,  "to  own  or  admit  the 
knowledge  of."  It  is  not  necessary  to  dwell  at  great  length  upon 
this  special  element  nesessary  to  satisfy  the  statute.  Under  the 
evidence,  it  can  hardly  be  considered  debatable.  Blythe  declared 
the  plaintiff'  to  be  his  child,  to  all  persons,  upon  all  occasions.  He 
was  garrulous  upon  the  subject.  Aside  from  his  business  occu- 
pations, his  mind  ever  rested  upon  his  relations  to  the  child,  and 
it  was  his  common  topic  of  conversation.    If  necessary  to  this  de- 


LEGITIMATION    AND    ADOI'IION.  327 

cision,  it  coiild  almost  be  .leld  that  he  shouted  it  from  the  house- 
tops. He  acknowledged  the  child  to  its  mother  and  to  its  grand- 
mother before  it  was  born,  and  subsequently,  in  no  single  in- 
stance, was  he  ever  heard  to  deny  its  paternity.  It  was  named 
and  baptized  Florence  Blythe  at  his  request,  and  ever  after  has 
been  known  to  the  world  as  Florence  Blythe.  Authority  is  not 
necessary  to  be  cited  to  support  this  branch  of  the  case,  but  In 
re  Jcssiip,  8i  Cal.  419,  is  not  only  in  accord  with  this  position,  but 
conclusive  in  its  favor.  This  acknowledgment  was  also  public, 
for,  as  we  have  seen,  the  thought  of  concealment  of  the  paternity 
of  the  child  never  entered  his  mind.  Why  should  it,  when  it  is 
entirely  apparent  from  the  evidence  that  he  was  proud  of  such 
paternity  ? 

2.  Did  Blythe  receive  it  as  his  child,  with  the  consent  of  his 
wife,  into  his  family?  Blythe  had  no  wife,  and  that  element  of 
the  statute  is  eliminated  from  the  case.  No  construction  of  the 
statute,  however  rigid,  would  hold  the  existence  of  a  wife  neces- 
sary, before  the  benefits  to  be  derived  under  this  section  could  pos- 
sibly attach  to  an  illegitimate  child.  This  question  of  the  wife's 
consent  can  only  be  a  material  element  when  there  is  a  wife  to 
consent.  In  re  Jessiip,  81  Cal.  419,  fully  recognizes  and  necessar- 
ily adopts  this  principle,  for  in  that  case,  as  here,  the  father  of  the 
child  had  no  wife  to  consent,  and  such  fact  would  thus  have  de- 
feated plaintiff's  claims  at  the  very  threshold  of  the  litigation.  It 
may  be  conceded,  for  the  purposes  of  this  case,  that  if  Blythe  had 
a  family,  such  child  must  have  been  received  therein,  or  the  statute 
would  not  have  been  satisfied ;  but,  as  we  have  seen,  if  Blvthe 
had  no  wife  to  consent,  that  requirement  has  no  standing  here ; 
so  if  he  had  no  family  into  which  the  child  could  have  been  re- 
ceived, that  element  is  foreign  to  the  case.  Under  the  rule  of 
liberal  construction  laid  down  in  the  case  of  In  re  lessup,  81  Cal. 
419,  such  must  necessarily  be  the  law.  To  give  that  meaning 
to  th  >  statute  by  which  all  men  who  have  no  families  are  debarred 
from  legitimating  their  illegitimate  offspring  would  be  to  give  the 
section  a  harsh  and  illiberal  construction.  Unless  the  provision 
is  so  plain  and  explicit  as  to  amount  to  an  express  inhibition  to 
that  effect,  upon  every  principle  of  right  and  justice  we  could  not 
so  hold.  The  rule  of  construction  as  declared  in  the  Jessup  case 
is,  that  if  the  statute  is  ambiguous  or  doubtful,  or  susceptible  of 
different  constructions  or  interpretations,  then  such  construction 
is  to  be  indulged  as,  within,  the  fair  .nterpretation  A  its  lan- 
guage, will  effect  its  apparent  object  and  inirpose.     Section  1866 


828  PRIVATE    INTERNATIONAL    LAW. 

of  the  Code  of  Civil  Procedure  further  provides :    "When  a  stat- 
ute or  instrument  is  equally  susceptible  of  two   interpretations, 
one  in  favor  of  natural  right,  and  the  other  against  it,  the  former 
is  to  be  adopted."    Applymg  these  tests  of  statutory  construction 
to  this  provision,  but  one  result  can  flow  therefrom,  and  that  is, 
the  existence  of  a  family,  no  more  than  the  existence  of  a  wife, 
is  an  indispensable  element  to  a  complete  and  perfect  adoption 
(or  legitimation,  more  properly  speaking)   under  this  provision 
of  law.     This  view  is  fully  borne  out  by  the  decision  in  In  re 
Jessup,  8i  Cal.  419.    It  is  said  in  the  decision  of  the  court  in  that 
case,  referring  to  Jessup:    "As  he  had  no  home  and  no  family  in 
the  strict  sense  of  a  'collective  body  of  persons  who  live  in  one 
house  and  under  one  head  or  manager,  a  household  including 
parents,  children,  and  servants,'  it  would  not  be  a  fair  or  liberal 
construction  to  say  that  the  child  had  not  been  adopted  or  ac- 
knowledged because  he  had  not  been  received  in  such  a  home  or 
made  a  member  of  such  fammily."    It  is  needless  to  say  that  the 
Jessup  case  was  considered  with  the  care  that  its  importance  de- 
manded, for  the  record  discloses  that  fact ;  and  it  may  be  sug- 
gested that  upon  this  question  alone  the  court  stood  together.    In- 
deed,  the   learned   counsel    representing  appellants   in   that   case 
throughout  their  arguments  conceded  such  to  be  the  law.     Blythe 
had  no  family.    The  court  found  that  he  was  living  with  a  mis- 
tress in  San  Francisco  from  the  year   1880  to  the  time  of  his 
death.     He  appears  to  have  lived  in  lodging-houses  during  all 
these  years.    He  had  no  relations,  save  of  the  collateral  line,  and 
they  were  at  all  times  residing  in  a  foreign  country.     He  had 
not  seen  them  or  communicated  with  them  for  more  than  ten 
years  prior  to  his  death,  and  at  no  time  had  he  seen  any  of  them, 
or  communicated  with  any  of  them,  since  Florence  Blythe,  the 
plaintiff,  was  born.     If  he  had  a  family,  either  his  mistress  or 
these  collateral  kindred  constituted  that  family.     Such  cannot  be 
the  f?^t,  and  it  would  be  a  travesty  upon  the  word  to  so  hold.     It 
was  held  hi  the  Jessup  case  that  the  father  had  a  family,  in  the 
sense  of  brothers  and  sisters,  with  whom  he  was  brought  into  fre- 
quent contact,  and  from  whom  he  concealed  and  denied  the  pater- 
nity of  the  child,  and  for  these  reasons,  and  others,  the  court  held 
there  was  no  adoption.     There  are  no  facts  in  this  case  in  the 
slightest  degree  comparable  to  those  there  presented.     In  that 
case,  the  language  of  the  court  as  to  this  point  bears  directly  upon 
the  question  of  acknowledgment,  and  not  as  to  the  reception  into 
the  family;  and  we  have  already  seen  that  a  public  acknowledg- 


LEGITIMATION    AND    ADOPTION.  329 

iiient  was  made  by  Blythe  against  which  nothing  can  be  said.  If 
the  term  "receiving  it  into  his  family"  does  not  necessarily  mean 
an  actual  reception  into  an  actual  family,  but  may  mean  a  con* 
structive  reception  into  a  constructive  family,  then  such  measure 
of  requirement  is  tilled  to  the  brim.  Plaintiff  was  baptized  in 
Blythe's  name  at  his  request.  Their  correspondence  indicates 
hearts  filled  with  mutual  afTection.  Her  picture  looked  down 
upon  him  from  its  place  upon  the  wall.  At  his  rooms  her  name 
was  a  household  word. 

We  pass  to  the  examination  of  the  remaining  element  of  the 
statute,  to  wit:  '"He  shall  otherwise  treat  it  as  a  legitimate  child." 
If  the  father  has  publicly  acknowledged  the  child  to  be  his  child, 
and  has  taken  it  into  his  family,  it  would  seem  but  little  remained 
to  be  done  to  wash  away  forever  the  stain  of  bastardy.  The  pub- 
lic acknowledgment  of  the  child  is  the  main  fact.  It  is  the  im- 
portant factor,  in  the  eyes  of  the  statute.  If  the  child  was  pub- 
licly acknowledged  and  received  into  the  family,  it  would  l)e  a 
novel  case  where  a  court  of  equity  would  close  its  doors  and  re- 
fuse to  declare  a  legitimation  because  the  child  was  poorly  clothed 
and  illy  fed.  That  case  has  not  yet  arisen,  and  it  is  hoped  and 
believed  it  never  will.  The  statute  clearly  means  that  the  father 
must  treat  his  illegitimate  child  as  he  would  naturallv  treat  his 
legitimate  child,  not  as  the  majority  of  men  in  his  financial  cir- 
cumstances would  or  should  treat  their  children.  Every  man 
furnishes  the  rule  by  which  he  must  be  measured.  No  imaginary 
standard  of  excellence  can  be  created,  and  then  it  be  demanded 
that  Blyrhe  shall  rise  to  that  standard.  If  appellants'  contention 
be  true,  a  child  whose  father  was  an  ignorant  man  believing  edu- 
cation an  evil  to  be  shunned,  and  who  therefore  denied  an  educa- 
tion to  the  child,  could  not  be  granted  legitimation.  Upon  appel- 
lants' theory,  an  illegitimate  child  whose  father  was  a  miser  would 
be  compelled  to  bear  forever  the  stain  of  bastardy.  While  Blythe 
was  a  man  of  large  property  interests,  his  estates  were  heavily 
involved.  Money  was  required  in  many  channels,  and  it  is  not 
probable  that  he  had  any  surplus  of  cash  on  hand.  Plaintiff  was 
well  olothed  and  well  fed.  It  appears  that  at  no  time  was  she  de- 
prived of  the  necessaries  of  life.  She  resided  at  all  times  either 
with  her  mother  or  her  grandmother.  Blythe  furnished  something 
near  $i  50  a  year  for  her  support ;  certainly  during  htr  infancy  this 
was  entirely  sufficient,  and  no  complaints  were  made  to  him  that 
more  money  was  needed  to  meet  her  wants.  At  all  these  times  he 
himself  was  either  stopping  in  a  log  house  in  the  mountains  of 


330  PRIVATE    INTERNATIONAL    LAW. 

Trinity,  or  living  with  his  mistress  in  lodgings  in  San  Farnclsco, 
surrounded  by  his  dogs,  birds,  and  cats,  while  his  hens  were 
located  upon  the  roof.  It  may  well  be  inferred  from  the  simplicity 
of  his  own  life  as  indicated  by  the  foregoing  circumstances,  that 
if  legitimate  children  had  been  born  to  him,  they  would  have  been 
treated,  as  far  as  pecuniary  expenditures  were  concerned,  upon 
the  same  lines  as  this  illegitimate  child  was  treated.  He  made  a 
will,  which  was  subsequently  lost  or  destroyed,  wherein  he  pro- 
vided for  her.  He  corresponded  with  her  as  a  father  would  cor- 
respond with  his  little  daughter.  He  had  her  christened  in  the 
name  of  Florence  Blythe.  Her  health,  her  education,  and  her  re- 
hsfion  were  matters  in  which  he  exercised  the  utmost  concern. 
She  occupied  his  thoughts,  and  her  name  was  upon  his  lips  in 
his  dying  hour.  For  these  reasons,  it  may  well  be  said  that  "he 
otherwise  treated  her  as  a  legitimate  child." 

We  pass  to  an  examination  of  section  1387  of  the  Civil  Code, 
upon  which  plaintiff  relies  to  constitute  herself  an  heir  of  Thomas 
H.  Blythe,  deceased.  That  section  declares,  inter  alia,  that  ''every 
illegitimate  child  is  an  heir  of  the  person  who,  in  writing,  signed 
111  the  presence  of  a  competent  witness,  acknowledges  himself  to 
be  the  father  of  such  child."  It  is  unnecessary  to  decide  whether 
this  provision  affects  the  status  of  a  child,  or  whether  it  is  alone  a 
statute  of  descent.  If  it  either  directly  or  indirectly  touches  upon 
status,  our  views  upon  the  question,  as  herein  previously  ex- 
pressed, are  applicable.  If  it  is  a  statute  of  descent,  pure  and 
simple, — and  Estate  of  Magee,  63  Cal.  414,  seems  to  so  declare  in 
explicit  terms, — then  the  plaintiff  is  entitled  to  all  the  benefits 
of  it,  regardless  of  domicile,  status,  or  extraterritorial  operation 
of  state  laws. 

The  rules  of  liberal  construction  applicable  to  section  230  are 
likewise  to  be  invoked  in  the  consideration  of  section  1387;  and 
the  obvious  purpose  and  intent  of  the  legislature  in  making  this 
enactment  was  to  entitle  illegitimate  children  to  inherit  their 
father's  estate,  the  same  as  legitimate  children.  Did  the  intestate, 
Blythe,  in  writing,  signed  in  the  presence  of  a  competent  witness, 
acknow^ledge  that  he  was  the  father  of  the  claimant,  Florence 
Bl}the?  Upon  an  inspection  of  the  provision,  we  see  that  the 
word  "acknowledge"  must  be  viewed  in  the  light  of  its  ordinary 
acceptation,  and  it  is  therefore  used  in  exactly  the  same  sense  as 
when  found  in  section  230.  The  acts  required  to  constitute  the 
acknowledgment  are  not  laid  down  in  the  statute.  No  stated 
form  of  acknowledgment  is  there  found  by  which  we  may  be 


LEGITIMATION    AND    ADOPTION.  331 

guided.  Again,  we  mus.  Lake  this  statute  as  we  find  it.  We  are 
not  here  to  construct  a  statute,  but  to  construe  a  statute.  We  can 
neither  interpolate  nor  ehininate,  and  we  are  bound  to  assume  that 
the  legislature  enacted  the  law  as  it  now  stands  with  a  due  com- 
prehension of  the  meaning  of  words  and  of  the  rules  of  statutory 
construction,  and  that  they  incorporated  into  the  act  all  that  was 
intended,  and  that  they  intended  that  effect  should  be  given  to  all 
that  was  found  therein. 

The  writings  relied  upon  in  this  case  to  bring  piaintifif  within 
the  provisions  of  the  statute  are  various  letters,  written  at  dif- 
ferent times,  by  Blythe  to  his  daughter  and  her  grandfather, 
which  letters  were  signed  by  him  in  the  presence  of  W.  H.  H. 
Hart,  who  was  a  competent  witness.  These  letters,  as  to  the 
question  of  acknowledgment  of  relationship,  are  of  the  same  gen- 
eral character  and  imj^ort,  and  our  investigation  will  be  limited 
to  the  consideration  of  two  of  them,  one  a  letter  to  the  grand- 
father, and  the  other  a  letter  to  the  daughter,  either  of  which,  to 
our  minds,  fully  satisfies  the  statute.  He  writes  a  letter  to  the 
plaintiff,  from  which  we  quote: — 

"My  Darling  Child, — You  have  made  your  father  very  happy 
by  writing  to  him  your  little  letter.  .  .  .  But  I  feel  sad  to  learn 
that  my  own  dear  child  has  been  sick,  and  her  papa  not  being  near 
to  help  her.  You  say  you  wonder  when  you  shall  see  your  dear 
papa.    Well,  my  dear  child,  it  is  about  like  this  :  Your  papa  .... 

After  th.at  your  papa  will  leave  San  Francisco and  have 

his  dear  Florence  with  him  always I  should  like  my  dear 

daughter  to  write  to  her  papa  a  letter  once  every  month 

Grant  is  now  lying  at  my  feet,  while  his  master  is  writing  his  first 

letter  to  his  own  darling  child,  far  away May  God  bless 

you,  my  dear  child.     From  your  loving  father, 

"Thomas  H.  Blvtiie." 

The  letter  to  the  grandfather  was  read  to  said  Hart,  and 
signed  in  his  presence.  We  quote:  "I  look  at  the  proposed  bap- 
tism of  dear  Flora  as  a  matter  of  very  deep  importance.  After 
full  deliberation,  T  think  it  best  to  have  Flora  brought  up  in  the 
Episcopal  Church,— Church  of  England.  You  will,  therefore, 
please  have  my  daughter  christened  at  once,  and  have  her  named 
after  her  father,  Florence  Blythe." 

There  can  be  but  one  construction  placed  upon  these  letters, 
and  that  is,  they  mean  that  Florence  was  the  daughter  of  Thomas 
H.  Blythe, — "his  own  dear  child."  These  letters  acknowledge 
the   relationship   of   father   and    daugliter,   not    hesitatingly   and 


332  PRIVATE     INTERNATIONAL    LAW. 

grudgingly,  but  willingl>;  gladly,  and  entirely.  When  a  father 
says,  "You  are  my  own  darling  child,"  "I  am  your  father ;  you 
shall  be  baptized  in  my  name,  and  loved,  cherished,  and  protected 
always,"  the  subject  is  exhausted,  the  cup  of  acknowledgment  is 
filled  to  overflowing.  If  letters  are  entitled  to  be  used  as  writings 
to  prove  the  fact  of  acknowledgment,  these  letters  prove  that  fact. 
It  was  decided  in  Bailey  v.  Boyd,  59  Ind.  297,  under  a  stature  re- 
quiring the  father  to  acknowledge  his  illegitimate  child  subsequent 
to  marriage,  before  such  child  should  be  held  legitimate,  that  "it 
was  not  necessary  that  this  acknowledgment  should  have  been 
expressed  in  words,  but  it  may  fairly  be  inferred  from  the  acts 
and  conduct  of  the  elder  Bazil."  But  it  is  now  insisted  that  the 
writing  must  be  a  writing  specially  prepared  for  the  sole  object 
of  making  the  illegitimate  child  an  heir  of  the  father.  The 
adjudications  of  courts  are  not  favorable  to  this  view.  In  the 
case  of  Rice  v.  Efford,  3  Hen.  &  M.  227,  it  was  held  that  the 
recognition  of  the  illegitimate  child  in  a  will  as  the  testator's  child, 
the  will  being  void  as  a  will,  was  sufficient  to  entitle  him  to  inherit. 
Chief  Justice  Tucker,  in  this  connection,  saying  in  Stones  v. 
Keeling,  reported  in  the  same  volume,  upon  the  following  page . 
"The  act  of  1785,  it  should  be  remembered,  relates  to  the  dispo- 
sition of  property  only,  and  proceeds  to  show  who  shall  be 
admitted  to  share  the  property  of  a  person  dying  intestate,  not- 
withstanding any  former  legal  bar  to  a  succession  thereto,  and  in 
that  light  (he  law  ought  to  receive  the  most  liberal  construction, 
it  being  evidently  the  design  of  the  legislature  to  establish  the 
most  liberal  and  extensive  rules  of  succession  to  estates  in  favor 
of  all  in  whose  favor  the  intestate  himself,  had  he  made  a  will, 
might  have  been  supposed  to  be  influenced,  and  here  there  can  be 
no  doubt,  had  he  died  testate,  that  these  daughters  would  have 
been  the  first  object  of  his  care."  Reading  the  present  case  in  the 
light  of  the  evidence  furnished  by  the  record,  there  can  be  no 
doubt  but  if  Blythe  had  died  testate,  Florence  would  have  been 
the  first  object  of  his  care.  In  Succession  of  Fletcher,  1 1  La. 
Ann.  60,  Henry  Fletcher,  in  an  act  of  manumission  made  before 
a  notary  and  witnesses,  described  the  party  enfranchised  by  his 
act  as  his  "natural  daughter,  slave,"  and  such  was  held  to  be  a 
sufficient  acknowledgment  of  paternity,  under  a  statute  which 
declared  that  "the  acknowlegment  of  an  illegitimate  child  shall 
be  made  by  a  declaration  executed  before  a  notary  public,  in  the 
presence  of  two  witnesses."  In  that  case  the  court,  citing  French 
authorities,  held:     "It  is  said  that  the  words  'natural  daughter, 


LEGITIMATION    AND    ADOPTION.  333 

slave,'  were  terms  of  description  foreign  to  the  purpose  of  the 
act,  used  to  manumit  a  slave,  and  not  to  acknowledge  her  pater- 
nity, but  no  form  is  prescribed  for  such  an  acknowledgment,  save 
only  that  the  declaration  be  made  before  a  notary  public,  in  pres- 
ence of  two  witnesses.  If  the  declaration  be  thus  made,  it  seems 
to  be  immaterial  whether  it  be  the  main  object  of  the  act,  or  not." 
In  Rcmy  v.  Mxinicipality,  ii  La.  Ann.  159,  the  court,  in  referring 
to  the  acknowledgment  of  paternity  made  in  a  will,  said:  "'i'his 
document,  it  is  true,  was  intended  to  be  a  will,  and  has  never  been 
admitted  to  probate  as  such,  but  though  not  binding  as  a  will,  it  is 
certainly  good  as  an  acknowledgment  of  paternity,  made  in  due 
form."  Section  1387  is  essentially  a  statute  of  inheritance,  and 
there  is  no  more  fitting  place  for  the  father  to  recognize  the  moral 
duty  enjonied  upon  him  toward  his  illegitimate  offspring  than  by 
acknowledging  that  child  in  his  last  will  and  testament  in  accord- 
ance with  the  provisions  of  that  section ;  and  the  fact  that  the  ac- 
knowledgn'ent  was  subsidiary  to  the  main  object  and  purpose  of 
the  testator  in  making  the  document  would  not  thereby  weaken 
the  effect  of  the  writmg  as  an  acknowledgment. 

Under  the  statute  of  Indiana,  marriage  and  subsequent  ac- 
knowledgment of  the  paternity  of  the  child  by  the  father  consti- 
tuted a  legitimation  of  the  child,  and  in  the  case  of  Brock  v.  State, 
85  Ind.  397.  where  the  father  married  the  woman  and  acknowl- 
edged the  child  for  the  sole  purpose  of  escaping  a  prosecution  for 
bastardy,  and  with  the  intention  at  the  time  of  the  marriage  to 
immediately  abandon  the  mother  and  child,  it  was  held  that  sucli 
intentions  were  entirely  immaterial,  and  that  his  acts  created  a 
legitnnation. 

In  Crane  v.  Crane,  31  Iowa,  296,  the  question  here  involved 
squarely  presented  itself.  The  statute  of  Iowa  provided  for  legiti- 
mation by  a  recognition  in  writing  of  the  illegitimate  child  by 
tlie  father.  Two  propositions  upon  which  appellants  insist  are 
directly  decided  against  them  in  that  case.  It  was  held  that  a  for- 
mal writing  of  recognition  was  not  necessary,  but  that  letters  to 
a  friend  would  suffice,  and  it  was  further  held  that  the  references, 
to  the  child  in  the  letters  were  sufficient  to  constitute  recognition. 
The  references  by  the  father  in  those  letters  to  the  child  as  his 
child,  while  quite  clear,  are  weak,  vague,  and  unconvincing  when 
compared  to  the  references  upon  the  saiTic  subject  found  in  the 
letters  of  Blythe.  A  majority  of  the  states  of  this  Union,  and 
also  various  countries  of  Europe,  requiie  the  illegitimate  child  to 
be  recognized  or  acknowledged  by  the  father  before  legitimation 


334  PRIVATE    INTERNATIONAL    LAW. 

takes  place,  yet  no  authority  has  been  cited  from  any  state  or 
country  (and  we  therefore  confidently  assume  there  is  none), 
except  the  case  of  Pina  v.  Peck,  31  Cal.  359,  to  which  our  atten- 
tion shall  be  presently  directed,  which  holds  that  a  formal  recog- 
nition or  formal  acknowledgment  is  necessary,  in  order  to  consti- 
tute a  legitimation. 

It  is  insisted  that  the  witness  Hart  should  have  subscribed 
liis  name  to  the  writing  as  a  witness  thereto,  but  '"competent  wit- 
ness" and  ".subscribing"  or  "attesting"  witness  are  in  no  sense 
synonymous  terms.     In  In  the  matter  of  Noble,  124  111.  270,  the 
court  says:    "  'Credible  witnesses,"  as  used  in  the  statute  relating 
to  wills,  has  been  construed,  both  in  England  and  this  country,  to 
mean  competent  zvitnesses;  that  is,  such  persons  as  are  not  legally 
disqualified  from  testifying  in  courts  of  justice  by  reason  of  men- 
tal incapacity,  interest,  or  the  commission  of  crime,  or  other  cause 
excluding  them   from   testifying-   generally,   or   rendering   them, 
mcompetent  in  respect  of  the  particular  subject-matter  or  in  the 
particular  suit."     As  before  remarked,  it  is  not  the  duty  of  the 
court  to  add  to  or  subtract  from  the  words  of  the  statute.     We 
must  construe  it  as  it  stands  enacted.     If  the  legislature   had 
intended  such  witness  to  be  a  "subscribing"  or  "attesting"  witness, 
it  was  easy  for  it  to  have  said  so.     Not  having  so  declared,  it 
would  be  judicial  legislation  for  this  court  to  so  hold  the  statute 
to  be.     Section  1940  of  the  Code  of  Civil  Procedure  provides  that 
a  writing  may  be  proved  by  any  one  who  saw  it  executed,  and  we 
cannot  say  but  that  such  proof  was  contemplated  by  the  legisla- 
ture when  it  framed  this  provision  of  the  statute.     Our  codes 
contain  many  instances  where  the  term  "attesting  witness"  or 
"subscribing  witness"  is  used,  when  the  signature  of  the  witness 
is  requited  to  give  life  to  a  written  instrument,  and  we  must  pre- 
sume that  the  legislature  did  not  intend  that  the  writing  should  be 
signed,  when  it  did  not  so  declare.     In  all  the  statutes  of  the 
varicjis  states,  wherever  the  signature  of  a  witness  to  any  docu- 
ment  is   required,   Vv^e   find   the   statute   either   using  the   words 
"attesting  witness"  or  "subscribing  witness."     Under  the  liberal 
rules  of  construction  by  which  this  court  must  be  guided,  and 
-under  the  principle  laid  down  by  Chief  Justice  Tucker  in  Stones 
V.  Keeling,  3  Hen.  &  M.  228,  we  are  not  called  upon  to  defeat 
this  plaintiff's  claims  by  holding  that  the  words  "competent  wit- 
ness," as  used  in  the  statute,  should  be  construed  to  mean  "attest- 
ing" or  "subscribing"  witness.     The  law  of  Pennsylvania  requires 
that  the  will  of  a  married  woman  shall  be  executed  in  the  pres- 


LEGITIMATION    AND    ADOPTION.  335 

ence  of  two  witnesses,  ar.u  the  court  said,  in  Combs's  Appeal,  105 
Pa.  St.  159;  "Such  witnesses  were  not  required  to  subscribe  their 
names  thereto."  If  more  need  be  said  on  this  behalf,  we  would 
sug-g-est  that  this  statute  was  orig-inally  copied  from  a  statute  of 
the  state  of  Maine,  which  also  used  the  words  "competent  wit- 
ness"; but  subsequently  the  lec^ishture  of  that  state  amended  the 
statute  by  causing  it  to  read,  "and  attested  by  a  competent  wit- 
ness," that  legislature  thus  recognizing  not  only  the  fact  that 
legislation  was  necessary  in  order  that  the  witness  should  be 
required  to  sign  the  writing,  but  also  that  it  was  a  matter  with 
which  the  legislature  should  deal  and  with  which  the  courts  had 
no  concern.  It  is  a  familiar  principle  of  statutory  construction 
that  a  statute  taken  and  enacted  from  the  law^s  of  another  state 
carries  with  it  the  construction  given  to  it  by  the  laws  of  that 
state.  The  amendment  made  to  the  statute  of  Maine  clearly 
indicates  what  construction  was  there  given  this  provision  of  sec- 
tion 1387. 

In  speaking  as  to  the  construction  of  statutes  relating  to  the 
form  and  manner  of  making  wills,  the  court  said  in  In  the  Matter 
of  Simpson,  56  How.  Pr.  126:  "The  restrictions  which  from 
motives  of  prudence  are  thrown  around  the  right  should  be  con- 
strued liberally  in  favor  of  the  testament,  and  forms  should  not 
be  required  which  the  legislature  has  not  plainly  prescribed."  The 
question  as  to  the  wisdom  and  policy  of  this  provision  is  not  a 
matter  for  our  consideration.  This  court  is  not  the  forum  to 
administer  relief  for  evil  in  this  law,  if  evil  there  be.  If  the  law- 
is  not  what  it  should  be,  let  the  legislature  follow^  the  course 
adopted  by  the  state  from  which  it  took  the  law\  and  amend  the 
statute  in  this  regard,  as  that  state  has  done.  As  the  law  is  now 
wn-itten.  compliance  has  been  had  with  it,  and  having  determined 
that  matter,  the  investigation  is  concluded,  as  far  as  this  court  is 
concerned. 

^t  is  further  insisted  that  the  letters,  wdien  placed  in  the  cru- 
cible by  which  they  are  to  be  tested,  are  found  wanting,  because 
it  is  -said  that  the  writing  must  be  complete  in  itself;  that  is,  it 
must  show  upon  its  face  that  the  child  is  an  illegitimate  child,  and 
that  it  was  signed  in  the  presence  of  a  competent  witness.  \\'e 
find  nothing  in  the  law  subjecting  the  writing  to  any  such  test. 
The  statute  does  not  require  it.  Such  recitals  would  not  add  one 
jot  to  the  weight  and  credit  to  be  given  to  the  writing  by  the 
court,  if  they  w^ere  there  found  state^.  They  would  have  no 
more  weight  and  be  of  no  more  avail  in  arriving  at  a  final  deter- 


336  PRIVATI-    INTERNATIONAL    LAW. 

mination  of  the  merits  of  the  cause,  than  if  Blythe  had  said  in  the 
writing,  "I  made  this  writing,  and  the  facts  therein  stated  are 
true."  A  statement  in  the  writing  that  it  was  signed  in  the  pres- 
ence of  a  competent  witness  could  not  be  evidence  of  that  fact ; 
no  more  would  a  reference  in  the  writing  to  the  child  as  an  ille- 
gitimate child  establish  such  illegitimacy.  In  Grant  v.  Mitchell, 
83  Me.  26,  the  court,  in  speaking  to  this  question,  said :  "In  either 
case,  it  must  first  appear  that  the  child  is  illegitimate.  The  stat- 
ute does  not,  nor  does  it  purport  to,  act  upon  any  other ;  nor  does- 
the  subsequent  marriage,  adoption,  or  acknowledgment  have  any 
tendency  to  prove  this  fact.  Whatever  may  be  the  effect  of  the 
acknowledgment  in  showing  the  paternity  of  one  proved  to  be 
illegitimate,  it  annot  be  taken  as  proof  of  the  illegitimacy." 
Blythe,  in  writing,  acknowledged  himself  to  be  the  father  of 
Florence  Blythe ;  Florence  Blythe  is  an  illegitimate  child ;  there- 
fore, Blythe  acknowledged  himself  to  be  the  father  of  an  illigiti- 
mate  child.  This  logic  is  unassailable,  and  no  sound  reason  can  be 
adduced  why  the  acknowledgment  should  contain  a  declaration  of 
bastardy. 

Bearing  upon  both  branches  of  this  case,  as  to  the  policy  of 
the  law,  and  the  true  principle  of  construction  to  be  invoked,  we 
quote  the  apt  language  of  Beatty,  C.  J.,  in  the  Jessup  case  (81  Cal. 
435),  and  the  views  there  expressed  in  no  wise  conflict  with  the 
principles  declared  in  the  mam  opinion  of  the  court.  He  says : 
"The  only  argument  that  can  be  made  against  his  claim  to  inherit 
his  father's  estate  rests  upon  a  strict  construction  of  the  statutes, 
remedial  in  their  nature,  designed  to  secure  to  innocent  unfor- 
tunates in  his  situation  a  just  share  of  the  rights  to  which  they 
are  by  nature  as  fully  entitled  as  are  legitimate  offspring.  No 
doubt  a  strong  argument  can  be  built  on  this  basis  of  strict  con- 
struction against  the  decision  of  the  superior  court.  But  I  adhere 
to  the  view  so  strongly  put  and  so  satisfactorily  maintained  by 
Justice  Works  in  his  opinion,  that  in  cases  of  this  kind  the  only 
strictness  required  is  in  proof  of  paternity.  That  being  satis- 
factorily established  by  plenary  proof,  I  think  courts  should  lean 
strongly  in  favor  of  a  finding  that  the  father  of  an  illegitimate 
child  has  done  what  every  honest  and  humane  man  should  be  not 
only  willing  and  eager  to  do,  and  what  a  just  law  would  compel 
the  unwilling  to  do.  I  also  think  it  a  wholly  unauthorized  con- 
struction of  the  statute  to  hold  that  the  acts  of  recognition,  ac- 
knowledgment, etc.,  necessary  to  legitimize  a  natural  child  should 
be  performed  with  the  express  intention  on  the  part  01  the  father 


LEGITIMATION    AND    ADOPTION.  337 

of  accomplishing:;^  that  object.  Tf  the  acts  are  in  themselves  such 
as  the  statute  prescribes,  I  think  they  confer  lej^itimacy  witiiout 
any  reference  to  the  nitent  with  which  they  are  performed.  There 
is  no  danger  to  morahty  in  reco£;^nizing  the  natural  rights  of  ille- 
gitimate children  as  against  their  fathers,  or  other  claimants  of 
their  estates,  and  there  is  no  danger  of  encouraging  the  fabri- 
cation of  spurious  claims  so  long  as  strict  proof  of  paternity  is 
insisted  upon." 

The  foregoing  views  are  not  in  harmony  with  the  principles 
declared  in  the  elaborate  opinion  of  Mr.  Justice  Rhodes  in  the 
case  of  Pina  v.  Peck,  31  Cal.  359,  and  upon  which  decision  appel- 
lants in  the  main  rest  this  branch  of  their  case.  It  is  not  our 
mtention  to  analyze  the  soundness  of  the  legal  principles  there 
laid  down,  otherwise  than  may  have  been  incidentally  done  m 
what  wc  have  already  said.  Still,  we  might  be  allowed  to  say, 
no  authority  of  courts  or  men  learned  in  the  law  is  presented  in 
that  opinion  to  support  the  views  there  declared,  although,  as  we 
have  seen,  authority  is  not  wanting  to  the  contrary.  Pina  v.  Peck, 
31  Cal.  359.  is  not  authority'  in  this  case,  for  two  sufficient 
reasons:  i.  But  four  justices  participated  in  the  decision 
(Justice  Sanderson  not  taking  part),  and  two  of  these  justices 
concurred  alone  in  the  judgment.  This  fact  entirely  destroys 
the  effect  of  the  decision  as  an  authority  upon  any  and  all  matters 
therein  discussed.  2.  Justice  Rhodes  says  at  the  very  inception 
of  his  opinion :  "It  is  contended  by  the  defendants  that  this  pro- 
vision of  the  statute  is  in  derogation  of  the  common  law,  and 
must,  therefore,  be  strictly  construed.  That  doctrine  was 
announced  and  applied  by  the  court  in  the  estate  of  Samuel  San- 
ford,  and  we  are  of  opinion  that  the  ruling  is  correct,  beyond  a 
doubt.  As  a  consequence  resuliing  from  the  operation  of  this 
rule,  the  acknowledgment  must  conform  to  the  statute,  and  be 
complete  in  itself;  that  is  to  say,  it  must  not  require  the  aid  of 
extrinsic  evidence.  When  the  parties  are  identified,  and  the  instru- 
ment in  writing  is  produced  and  proven,  the  court  must  be  able  to 
say  from  the  instrument  that  the  person  who  signed  it  thereby 
acknowdedged  himself  to  be  the  father  of  the  illegitimate  child 
therein  named."  Thus  this  decision  was  expressly  based  upon 
strict  and  rigid  rules  of  statutory  construction,  and  as  we  have 
seen,  those  rules  of  construction  have  now  been  entirely  displaced, 
as  to  the  codes,  by  rules  liberal  and  humane  in  their  character. 
That  decision  being  expressly  based  upon  strict  rules  of  construc- 
tion, and  strict  rules  of  construction  now  being  abolished,  it  cannot 
22 


■1< 


338  PRIVATE     INTERNATIONAL    LAW. 

be  said  to  be  binding  authority  in  a  case  which  we  are  called  upon 
to  decide  by  an  application  of  statutory  rules  of  liberal  construc- 
tion. It  is  insisted  that  the  following  rule  of  construction,  as 
declared  by  Judge  Cooley  in  his  Constitutional  Limitations  (p. 
66),  must  be  invoked  in  this  case,  to  wit:  "It  has  ever  properly 
been  held  ihat  the  legislature,  by  enacting  wdthout  material  alter- 
ation a  statute  which  has  been  judicially  expounded  by  the 
highest  court  of  the  state,  must  be  presumed  to  have  intended  that 
the  same  words  should  be  received  in  the  new  statute  in  the  sense 
which  had  been  attributed  to  them  in  the  old."  There  can  be  no 
question  that  if  the  rules  of  statutory  construction  were  the  same 
now  as  when  Pina  v.  Peck,  31  Cal.  359,  was  decided,  and  the 
views  there  expressed  had  been  adopted  by  a  majority  of  the 
court,  this  principle  of  the  construction  of  statutes  would  have 
controlling  efifect  in  this  case,  but  it  is  equally  true  that  if  the  rules 
of  construction  have  been  changed,  such  principle,  in  the  very 
nature  of  things,  could  not  maintain. 

For  the  foregoing  reasons,  let  the  judgment  be  affirmed, 
Paterson,  J.,  and  Sharpstein,  J-,  concurred. 


24 


"As  a  general  rule,  in  this  country,  the  law  of  the  father's  domicil  at 
the  time  of  the  marriage,  determines  whether  such  child  is  made  legitimate 
by  the  subsequent  marriage  of  the  parents.  If  such  law  recognizes  legiti- 
mation by  subsequent  marriage  of  the  parents,  the  child  is  legitimate  every- 
where. Fowler  v.  Fozvler,  131  N  C.  i6g,  42  S.  E.  563,  59  L.  R.  A.  317; 
Straeder  v.  Graham,  5/  U.  S.  10;  Stewart  v.  Stezvart,  31  N.  J.  Eq.  407; 
Sunderland  Estate,  60  lozva  732.  The  English  rule  seems  to  be  that  it  is 
the  law  of  the  father's  domicil  at  the  time  of  the  birth  of  the  child  which 
should  determine  the  effect  of  a  subsequent  marriage  of  the  parents,  and 
hot  the  law  of  the  father's  domicil  at  the  time  of  marriage.  Dicey  Conflict 
of  Laws,  497,  761,  and  cases  cited. 


MARRIAGE. 

COMMONWEALTH  v.  LANE,   1873. 
[113  Mass.  458.] 

1.  General  Rule  as  to  Validity  of       3.  To  What  Extent  are  Foreign  Mar- 

Marriage,  riages  Recognized. 

2.  Exceptions  to  the  General  Rule.      4.  Extra-territorial  Effect  of  Re- 

strictions on  Marriages. 

Gray,  C.  J.  The  report  finds  thr'  the  defendant  was  law- 
ftilly  married  to  his  first  wife  in  this  Cominonwealth ;  that  she 
obtained  a  divorce  here   from   the  bond   of  matrimony,   for  his 


MARRIAGE.  339 

adultery;  that  he  was  aiterwards,  while  still  a  resident  of  this 
Commonwealth,  marriea  to  a  second  wife  in  the  State  of  New 
Hampshire,  and  cohabited  with  her  in  this  Commonwealth,  the 
first  wife  being  still  ahvc;  and  the  question  is  whether  he  is 
indictable  for  polygamy,  under  the  Gen.  Sts.  c.  165,  §  4. 

It  is  provided  by  our  statutes  of  divorce  that,  in  cases  of 
divorce  from  the  bond  of  matrimony,  the  innocent  party  may 
marry  again  as  if  the  other  party  were  dead  ;  but  that  any  mar- 
riage contracted  by  the  guilty  party  during  the  life  of  the  other, 
without  having  obtained  leave  from  this  court  to  marry  again, 
shall  be  void,  and  such  party  shall  be  adjudged  guilty  of 
polygamy.     Gen.  Sts.  c.  107,  §§  25,  26.     St.  1864,  c.  216. 

The  marriage  act,  Gen.  Sts.  c.  106,  specifies,  in  §§  1-3,  what 
marriages  shall  be  void  by  reason  of  consanguinity  or  affinity:  in 
§  4,  that  all  marriages  contracted  while  either  of  the  parties  has 
a  former  wife  or  husand  living,  except  as  provided  in  c.  107,  shall 
be  void ;  in  §  5.  that  no  insane  person  or  idiot  shall  be  capable  of 
contracting  marriage ;  and  in  §  6  as  follows :  "When  persons  resi- 
dent in  this  state,  in  order  to  evade  the  preceding  provisions,  and 
with  an  intention  of  returning  to  reside  in  this  state,  go  into 
another  state  or  country,  and  there  have  their  marriage  solem- 
nized, and  afterwards  return  and  reside  here,  the  marriage  shall  be 
deemed  void  in  this  state." 

All  these  sections,  except  the  last,  are  manifestly  directed  and 
limited  to  marriages  within  the  jurisdiction  of  this  Common- 
wealth ;  and  the  last  has  no  application  to  this  case,  because  it 
does  not  appear  to  have  been  proved  or  suggested  at  the  trial  that 
the  parties  to  the  second  marriage  Vv-ent  out  of  this  state  to  evade 
our  laws,  or  even  that  the  second  wife  had  resided  in  this  state 
or  knew  of  the  previous  marriage  and  divorce. 

By  the  Gen.  Sts.  c.  165.  §  4,  "whoever,  having  a  former  hus- 
band or  wife  living,  marries  another  person,  or  continues  to  co- 
habit with  such  second  husband  or  wife  in  this  state,"  shall 
(except  when  the  first  husband  or  wife  has  for  seven  years  been 
absent  and  not  known  to  the  other  party  to  be  living,  or  in  case 
of  a  person  legally  divorced  from  the  bonds  of  matrimony  and 
not  the  guilty  cause  of  such  divorce)  be  deemed  guilty  of 
polygamy  and  punished  accordingly. 

This  statute  is  not  intended  to  make  any  marriages  unlawful 
which  are  not  declared  to  be  unlawful  by  other  statutes,  nor  to 
punish  cohabitation  imder  a  lawful  marriage.  Its  object  is  to 
prohibit    unlawful    second    marriages,    whether    the    parties    arc 


340  PRIVATE    INTERNATIONAL    LAW. 

actually  married  in  this  Commonwealth,  or  continue  after  being 
married  elsewhere  to  cohabit  here.  But  in  either  alternative,  in 
order  to  sustain  the  indictment,  the  second  marriage  must  be 
unlawful.  It  is  not  enough  that  the  marriage  is  such  as  would  be 
unlawful  if  contracted  in  this  Commonwealth ;  it  must  be  a  mar- 
riage which,  being  contracted  where  it  was,  is  unlawful  here. 

The  marriage  in  New  Hampshire  is  stated  in  the  report  to 
have  been  "according  to  the  forms  of  law ;"  and  it  appears  by  the 
statutes  of  New  Hampshire,  therein  referred  to,  that  the  only 
provision  relating  to  the  invalidity  of  marriages  on  account  of  the 
incompetency  of  parties  to  contract  them  is  as  follows :  "All 
marriages  prohibited  by  law,  on  account  of  the  consanguinity  or 
affinity  of  the  parties,  or  where  either  has  a  former  wife  or  hus- 
band living,  knowing  such  wife  or  husband  to  be  alive,  if  solem- 
nized in  this  state,  shall  be  absolutely  vo'd  without  any  decree  of 
divorce  or  other  legal  process."  Gen.  Sts.  of  N.  H.  (1867),  c, 
163,  §  I.  That  provision  clearly  does  not  extend  to  a  case  in 
which  the  former  wife,  having  obtained  a  divorce  from  the  bond 
of  matrimony,  was  absolutely  freed  from  all  obligation  to  the 
husband,  and  in  which,  as  observed  by  Mr.  Justice  Wilde,  in  a 
like  case,  "notwithstanding  the  restraints  imposed  on  the  husband, 
he  being  the  guilty  cause  of  the  divorce,  the  dissolution  of  the 
marriage  contract  was  total,  and  not  partial."  Commonwealth  v. 
Putnam,  i  Pick.  136,  139.  The  marriage  in  New  Hampshire 
must  therefore  be  taken  to  have  been  valid  by  the  law  of  that 
state. 

The  question  presented  by  the  report  is  therefore  reduced 
to  this :  If  a  man  who  has  been  lawfully  married  in  this  Com- 
monwealth, and  whose  wife  has  obtained  a  divorce  a  vinculo  here 
because  of  his  adultery,  so  that  he  is  prohibited  by  our  statutes 
from  marrying  again  v>/ithout  leave  of  this  court,  is  married, 
without  having  obtained  leave  of  the  court,  and  being  still  a  resi- 
dent" of  this  Commonwealth,  to  another  woman  in  another  state, 
according  to  its  laws,  and  afterwards  cohabits  with  her  in  this 
Commonwealth,  is  his  S'^cond  marriage  valid  here? 

The  determination  of  this  question  depends  primarily  upon 
the  construction  of  our  statutes,  but  ultimately  upon  fundamental 
principles  of  jurisprudence,  which  have  been  clearly  declared  by 
the  judgments  of  our  predecessors  in  this  court,  and  in  the  light 
of  which  those  statutes  must  be  read  in  order  to  ascertain  their 
just  extent  and  effect. 

What  marriages  between  our  own  citizens  shall  be  recog- 


MARRIAGE.  341 

nized  as  valid  in  this  Commonwealth  is  a  subject  within  the  power 
of  the  Legislature  to  regulate.  But  when  the  statutes  are  silent, 
questions  of  the  validity  of  marriages  are  to  be  determined  by  the 
jits  goitimii,  the  common  law  of  nations,  the  law  of  nature  as  gen- 
erally recognized  by  all  civilized  peoples. 

By  that  law,  the  validity  of  a  marriage  depends  upon  the 
question  whether  it  was  valid  where  it  was  contracted ;  if  valid 
there,  it  is  valid  everywhere. 

The  only  exceptions  admitted  by  our  law  to  that  general 
rule  are  of  two  classes:  ist.  Marriages  which  are  deemed  con- 
trary to  the  law  of  nature  as  generally  recognized  in  Christian 
countries ;  2d.  Marriages  which  the  Legislature  of  the  Common- 
wealth has  declared  shall  not  be  allowed  any  validity,  because 
contrary  to  the  policy  of  our  own  laws. 

The  first  class  includes  only  those  void  for  polygamy  or  for 
incest.  To  bring  it  within  the  exception  on  account  of  polygamy, 
one  of  the  parties  must  have  another  husband  or  wife  living.  To 
bring  it  within  the  exception  on  the  ground  of  incest,  there  must 
be  such  a  relation  between  the  parties  contracting  as  to  make  the 
marriage  incestuous  according  to  the  general  opinion  of  Christen- 
dom ;  and,  by  that  test,  the  prohibited  degrees  include,  beside 
pesons  in  the  direct  line  of  consanguinity,  brothers  and  sisters 
only,  and  no  collateral  kindred.  IVightinan  v.  IVightman.  4 
Johns.  Ch.  343,  349-351.  2  Kent  Com.  83.  Story  Confl.  §  114. 
Sutton  V.  Warren.  10  Met.  451.  Stevenson  v.  Gray,  17  B.  Mon. 
193.     Bozvers  v.  Bozvcrs,  10  Rich.  Eq.  551. 

A  marriage  abroad  between  persons  more  remotely  related, 
not  absolutely  void  by  the  law  of  the  country  where  it  was  cele- 
brated, is  valid  here,  at  least  until  avoided  by  a  suit  instituted  for 
the  purpose,  even  if  it  might  have  been  so  avoided  in  that  country ; 
and  this  is  so,  whether  the  relationship  between  the  parties  is  one 
whicii  would  not  make  the  marriage  void  if  contracted  in  this 
Commonwealth,  as  in  the  case  of  a  marriage  between  a  widower 
and  his  deceased's  wife's  sister,  or  one  which  would  invalidate  a 
marriage  contracted  here  as  in  the  case  of  a^  marriage  between 
aunt  and  nephew. 

In  Grecnzvood  v.  Curtis,  6  Mass.  358,  t,/S.  379,  Chief  Justice 
Parsons  said:  "If  a  foreign  state  allows  of  marriages  incestuous 
by  the  law  of  nature,  as  between  parent  and  child,  such  marriage 
could  not  be  allowed  to  have  any  validity  here.  But  marriages 
not  naturally  unlawful,  but  prohibited  by  the  law  of  one  state, 
and  not  of  another,  if  celebrated  where  they  are  not  prohibited, 


342  PRIVATE    INTERNATIONAL    LAW. 

would  be  holden  valid  in  a  state  where  they  are  not  allowed.  As 
in  this  state  a  marriage  between  a  man  and  his  deceased  wife's 
sister  is  lawful,  but  it  is  not  so  in  some  states ;  such  a  marriage 
celebrated  here  would  be  valid  in  any  other  state,  and  the  parties 
entitled  to  the  benefits  of  the  matrimonial  contract."  This  dis- 
tinction was  approved  by  Chancellor  Kent  and  by  Judge  Story. 
2  Kent  Com.  85,  note  a.     Story  Confl.  §  116. 

In  The  Queen  v.  ^Vye,  7  A.  &  E.  761,  771  ;S.  C.  3  N.  &  P.  6, 
13,  14;  it  was  decided  that  the  marriage  of  a  man  with  his 
mother's  sister  in  England  before  the  St.  of  5  &  6  Will.  IV.  c.  54, 
though  voidable  by  process  in  the  ecclesiastical  courts,  was,  until 
so  avoided,  valid  for  all  .civil  purposes,  including  legitimacy  and 
settlement.  In  accordance  with  that  decision,  it  was  held  in 
Sutton  v.  Warren,  10  Met.  451,  that  such  a  marriage  contracted  in 
England,  and  never  avoided  there,  must,  upon  the  subsequent 
removal  of  the  parties  to  Massachusetts,  and  the  question  arising 
collaterally  in  an  action  at  common  law,  be  deemed  valid  here, 
although,  if  contracted  in  this  Commonwealth,  it  would  have 
been  absolutely  void. 

A  marriage  which  is  prohibited  here  by  statute,  because  con- 
trary to  the  policy  of  our  laws,  is  yet  valid  if  celebrated  elsewhere 
according  to  the  law  of  the  place,  even  if  the  parties  are  citizens 
and  residents  of  this  Commonwealth,  and  have  gone  abroad  for 
the  purpose  of  evading  our  laws,  unless  the  Legislature  has 
clearly  enacted  that  such  marriages  out  of  the  state  shall  have  no 
validity  here.  This  has  been  repeatedly  affirmed  by  well  con- 
sidered decisions. 

For  example,  while  the  staiues  of  Massachusetts  prohibited 
marriages  between  white  persons  and  negroes  or  mulattoes,  a 
mulatto  and  a  white  woman,  inhabitants  of  Massachusetts,  went 
into  Rhode  Island,  and  were  there  married  according  to  its  laws, 
and  immediately  returned  into  Massachusetts ;  and  it  was  ruled 
by  Mr,  Justice  Wilde  at  the  trial,  and  affirmed  by  the  whole  court, 
that  the  marriage,  even  if  the  parties  went  into  Rhode  Island  to 
evade  our  laws,  yet,  being  good  and  valid  there,  must  upon  gen- 
eral principles  be  so  considered  here,  and  that  the  wife  therefore 
took  the  settlement  of  her  husband  in  this  Commonwealth.  Med- 
way  v.  Needham,  16  Mass.  i  57. 

So  it  has  been  held  that  a  man,  from  whom  his  wife  had 
obtained  in  this  state  a  divorce  a  I'inciilo  for  his  adultery,  which 
by  our  statutes  disabled  him  from  contacting  anothe.  marriage, 
might  lawfully  marry  again  in  another  state  according  to  its  laws  ; 


MARRIAGE.  343 

that  the  Ciiildren  cf  sucn  marriage  took  the  settlement  of  their 
father  in  tins  Commonwealth;  and  that  the  new  wife  was  entitled 
to  dower  in  his  lands  here,  even  if  the  wife  as  well  as  the  husband 
was  domiciled  here,  and  knew  of  the  previous  divorce  and  its 
cause,  and  went  into  the  other  state  to  evade  our  laws — so  long 
as  our  statutes  did  not  declare  a  marriage  contracted  there  with 
such  intent  to  be  void  here.  JVcst  Cambridge  v.  Lexington,  i 
Pick.  506.  Putnam  v.  Putnam,  8  Pick.  433.  See  also  Dickson 
v.  Dickson,  i  Yerger,  no;  Ponsford  v.  Johnson,  2  Blatchf.  C.  C. 
51 ;  2  Kent  Com.  91-93. 

The  principles  upon  which,  these  decisions  proceeded  were 
recognized  in  all  the  English  cases  decided  before  the  American 
Revolution,  although  it  is  true,  as  has  since  been  pointed  out,  that 
the  particular  question  in  each  of  them  related  rather  to  the  forms 
required  tlian  to  the  capacity  of  the  parties. 

Lord  Hardwicke's  Marriage  Act  in  1752  provided  that  all 
marriages  of  minors,  solemnized  by  license  without  the  consent  of 
parents  or  guardians,  should  be  void.  St.  26  Geo.  II.  c.  33,  §  1 1. 
Yet  in  the  first  case  which  arose  under  that  act,  in  which  an 
English  bcv  eighteen  years  old  went  abroad  with  an  English 
woman,  and  was  there  married  to  her  without  such  consent.  Lord 
Hardwicke,  sitting  as  chancellor,  assumed  that  if  the  marriage 
had  been  valid  by  the  law  of  the  country  in  which  it  was  cele- 
brated, it  would  have  been  valid  in  England,  saying:  "It  will 
not  be  valid  here  unless  it  is  so  by  the  laws  of  the  country  where 
it  was  had  ;  and  so  it  was  said  by  Murray,  attorney  general,  to 
have  been  determined  lately  at  the  Delegates."  And  it  would 
seem  by  the  report  that  the  woman  defeated  an  application  to  the 
Ecclesiastical  Court  to  annul  the  marriage,  by  refusing  to  appear 
there.     Butler  v.  Freeman,  Ambl.  301. 

The  case,  thus  referred  to  as  determined  at  the  Delegates,  was 
evir'-^ntly  Scrimshire  v.  Scnmsltire,  decided  by  Sir  Edward  Simp- 
son in  the  Consistory  Court  in  1752.  Of  that  opinion.  Sir  George 
Hay,  in  Harford  v.  Morris,  2  Hagg.  Con.  423.  431,  said,  "Every 
man  has  allowed  the  great  and  extensive  knowledge  of  the 
judge;"  and  Sir  William  Wynne,  in  Middlefon  v.  Janverin,  2 
Hagg.  Con.  437,  446,  remarked  that  he  remembered  to  have 
heard  that  the  judgment  was  founded  on  great  deliberation,  and 
that  Lord  Hardwicke  was  consulted  on  it. 

In  Scrimshire  v.  Scrimshire,  Sir  Edward  Simpson,  in  deliver- 
ing  judgment,    said:      "The    question    oeing    in    subi.iance    this, 


344  PRIVATE    INTERNATIONAL    LAW. 

Whether,  by  the  law  of  aiis  country,  marriage  contracts  are  not 
to  be  deemed  good  or  bad  according  to  the  law  of  the  country  in 
which  they  are  formed ;  and  whether  they  are  not  to  be  construed 
by  that  law?  If  such  be  the  law  of  this  country,  the  rights  of 
English  subjects  cannot  be  said  to  be  determined  by  the  laws  of 
France,  bui  by  those  of  their  own  country,  which  sanction  and 
adopt  this  rule  of  decision."  "All  nations  allow  marriage  con- 
tracts; they  are  juris  gentium,  and  the  subjects  of  all  nations  are 
equally  concerned  in  them ;  and  from  the  infinite  mischief  and 
confusion  that  must  necessarily  arise  to  the  subjects  of  all  nations, 
with  respect  to  legitimacy,  succession  and  other  rights,  if  the 
respective  laws  of  diiTerent  countries  were  only  to  be  observed,  as 
to  marriages  contracted  by  the  subjects  of  those  countries  abroad, 
all  nations  have  consented,  or  must  be  presumed  to  consent,  for 
the  common  benefit  and  advantage,  that  such  marriages  should 
be  good  or  not,  according  to  the  laws  of  the  country  where  they 
are  made.  It  is  of  equal  consequence  to  all,  that  one  rule  in  these 
cases  should  be  observed  by  all  countries — that  is,  the  law  where 
the  contract  is  made."  And  he  declared  the  marriage  in  that 
case  to  be  invalid,  only  because  it  appeared  to  be  wholly  null  and 
void  by  the  laws  of  France,  where  it  was  celebrated.  2  Hagg. 
Con.  395,  407,  408,  417.  421. 

In  Compton  v.  Bearcroft,  (1767-69,)  where  the  parties,  both 
being  English  subjects  and  the  libellant  a  minor,  ran  away  and 
were  married  in  Scotland,  a  libel  for  the  nullity  of  the  marriage 
was  dismissed  by  Sir  George  Hay  in  the  Court  of  Arches,  upon 
the  ground  that  Lord  Hardwicke's  Act  did  not  extend  to  Scot- 
land ;  but  by  the  Court  of  Delegates  on  appeal,  consisting  of 
Justices  Gould  and  Aston,  Baron  Perrott,  and  two  doctors  of 
civil  law,  upon  the  broader  ground  that  the  marriage  was  good  by 
the  lex  loci.  2  Hagg.  Con.  430,  443,  444  &  note ;  5".  C.  Bui. 
N.  P.  113.  114.  See  also  Ilderton  v.  Ilderton,  2  H.  Bl.  145; 
Dalryuiplc  v.  Dalryuiplc,  2  Hagg.  Con.  54,  59 ;  Rnding  v.  Smith, 
lb.  371,  390,  391  ;  Steele  v.  Braddcll,  Milward,  i,  21. 

In  a  recent  case  in  the  Flouse  of  Lords,  the  cases  of  Medzvay 
v.  Needham,  16  Mass.  157,  and  Sutton  v.  Warren,  10  Met.  451, 
above  cited,  have  been  severely  criticised,  and  pointedly  denied 
to  be  law.  Brook  v.  Brook,  9  H.  L.  Cas.  193;  5".  C.  3  Sm.  & 
Giff.  481.  As  that  court  is  the  one  of  all  foreign  tribunals,  the 
opinions  of  which,  owing  to  the  learning,  experience  and  ability 
of  the  judges,  we  are  accustomed  to  reg'  .rd  with  the  most  respect, 
it  becomes  necessary  to  examuie  w  ith  care  the  scope  of  that  deci- 


MARRIAGE.  345 

■   in 


sion,  and  the  soundness  of  the  reasons  assigned  for  it;  and  i 
Older  to  make  this  examination  intelligible,  it  will  be  convenient 
first  to  refer  to  the  English  statutes  and  to  some  earlier  decisions. 

Several  statutes  of  Henry  VIII.,  which  it  is  unnecessary  to 
state  in  detail,  declared  marriages  within  certain  degrees  of  consan- 
guinity an(i  affinity,  and  among  others  the  marriage  of  a  widower 
with  his  deceased  wife's  sister,  to  be  "contrary  to  God's  law  as 
limited  and  declared  by  act  of  Parliament."  Sts.  25  Hen.  VI 11. 
c.  22;  28  Hen.  VIII.  cc.  7,  16;  32  Hen.  VIII.  c.  38.  While 
those  statutes  remained  unaltered,  a  period  of  nearly  three  hun- 
dred years,  such  marriages  were  held  by  the  judges  not  to  be 
absohitely  void,  but  voidable  only  by  suit  in  the  ecclesiastical 
courts  during  the  lifetime  of  both  parties,  and,  if  not  so  avoided, 
were  treated  as  valid,  the  wife  entitled  to  dower,  and  the  children 
of  the  marriage  legitimate.  Co.  Lit.  33.  H'mks  v.  Hams,  4 
Mod.  182;  S.C.  \2  Mod.  35:  Carth.  271;  2  Salk.  548.  Lord 
Hardwicke,  in  Brownszcord  v.  Edzvards,  2  Ves.  Sen.  243,  245. 
I  Bl.  Com.  434,  435.  Elliott  v.  Gun,  2  Phillim.  16.  The  Queen 
V.  Wye,  7  A.  &  E.  761,  771 ;  5".  C.  3  N.  &  P.  6,  13,  14.  Westhy  v. 
Westhy,  2  Dru.  &  War.  502,  515,  516;  5".  C.  1  Con.  &  Laws.  537, 
544,  545  ;  4  Irish  Eq.  585,  593. 

The  St.  of  5  &  6  Will.  IV.  c.  54,  commonly  known  as  Lord 
Lvndhurst's  Act,  provided,  as  to  marriages  between  persons 
within  the  prohibition  degrees  of  affinity,  as  follows:  ist,  that 
such  marriages,  celebrated  before  the  passage  of  the  act,  should 
not  be  annulled,  except  in  a  suit  already  pending  in  the  ecclesias- 
tical courts;  2d.  that  such  marriages,  thereafter  celebrated,  should 
be  absolutely  null  and  void  to  all  intents  and  purposes  whatever ; 
3d.  that  nothing  in  this  act  should  be  construed  to  extend  to 
Scotland. 

The  marriage  of  a  widower  with  the  sister  of  his  deceased 
wife,  in  England,  after  this  statute,  was  held  to  be  within  the 
prohibited  degrees  and  utterly  void.  The  Queen  v.  Chadwick,  11 
Q.  B.  173,  234. 

A  case  afterwards  came  before  the  Scotch  courts,  in  which  an 
English  citizen  married  his  deceased  wife's  sister  in  England; 
the  validity  of  the  marriage  was  not  disputed  during  her  life,  and 
she  died  before  the  St.  of  Will.  IV.;  and  the  question  was, 
whether  the  children  of  the  marriage  could  inherit  his  lands  in 
Scotland.  The  Scotch  courts,  in  a  sen'-s  of  very  able  opinions, 
held  that  they  could,  upon  the  ground  that  by  the  law  of  Eng- 
land, the  marriage,  not  having  been  challenged  in  the  lifetime  of 


346  PRIVATE    INTERNATIONAL    LAW. 

both  parties,  could  not  in  any  form  be  declared  invalid  in  Eng- 
land, and  lire  children  were  legitimate  there,  and  must  therefore 
be  deemed  legitimate  in  Scotland.  Fcnton  v.  Ligingstonc,  i6  Ct. 
of  Sess.  Cas.  (2d  Series)  104,  and  18  lb.  865.  The  House  of 
Lords,  on  appeal,  reversed  that  decision,  and  held  that,  although 
the  marriage  had,  by  reason  of  the  peculiar  rules  governing  the 
English  courts  of  temporal  and  ecclesiastical  jurisdiction,  become 
irrevocable  there,  yet  it  was  always  illegal ;  and  that,  those  rules 
not  being  applicable  in  the  Scotch  courts,  the  legitimacy  of  the 
children  in  Scotland  depended  upon  the  question  whether  the 
marriage  was  illegal  by  the  law  of  Scotland.  6^.  C.  3  Macq.  497. 
The  Scotch  court  thereupon  decided  that  the  marriage  was  illegal, 
and  that  the  children  were  incapable  of  inheriting  lands  in  Scot- 
land.   S.  C.  23  Ct.  of  Sess.  Cas.  (2d  Series)  366, 

In  Brook  v.  Brook,  iibi  supra,  a  widower  and  the  sister  of  his 
deceased  wife,  being  lawfully  domiciled  in  England,  while  on  a 
temporary  visit  to  Denmark,  had  a  marriage  solemnized  between 
them,  which  was  by  the  laws  of  Denmark  lawful  and  valid  to  all 
intents  and  purposes  whatsoever.  In  a  suit  in  equity,  brought 
after  the  death  of  both  parties,  to  ascertain  the  rights  of  the  chil- 
dren in  their  father's  property,  the  House  of  Lords,  in  accordance 
with  the  opinions  of  Lords  Campbell,  Cranworth,  St.  Leonards 
and  Wensleydale,  and  affirming  a  decree  rendered  by  Vice  Chan- 
cellor Sluart,  assisted  by  Mr.  Justice  Cresswell,  held  that  the 
marriage  in  Denmark  was  wholly  void  by  the  St.  of  Will.  IV., 
and  that  the  children  of  that  marriage  were  bastards. 

The  decision  was  put.  by  the  learned  judges  who  concurred 
in  it,  upon  three  different  grounds. 

The  first  ground  was  that  the  St.  of  Will.  IV.  disqualified 
English  subjects  everywhere  from  contracting  such  a  marriage. 
This  ground  was  taken  in  the  court  below,  and  by  Lord  St. 
Leonards  in  the  House  of  Lords.  3  Sm.  &  Giff.  522,  525.  9  H. 
L.  Cas.  234-238.  But  it  was  expressly  disclaimed  by  Lord 
Campbell,  Lord  Cransworlh  and  Lord  Wensleydale,  the  two 
former  of  whom  expressed  opinions  that  the  statute  did  not  ex- 
tend to  all  the  colonies,  and  all  three  declared  that  they  did  not 
think  its  purpose  was  to  put  an  end  to  such  marriages  by  British 
subjects  throughout  the  world.    9  H.  L.  Cas.  214,  222,  240. 

The  second  ground,  which  was  suggested  by  Mr.  Justice 
Cresswell  and  Lord  Wensleydale  only,  and  is  opposed  to  all  tiie 
American  authorities,  was  that  the  cast  jusdy  fell  within  the  first 
exception,  stated  in  Story  Confl.  §   114,  of  marriages  involving 


MARRIAGE.  347 

polyg^amy  and  incest.  3  Sm.  &  Giff.  513.  9  H.  L.  Cas.  241, 
245.  In  view  of  that  position,  it  may  be  observed  that  in  an 
earlier  case,  in  which  Lord  W^ensleydale  himself  (then  Baron 
Parke)  delivered  the  opinion,  a  marriage  of  a  widower  with  his 
deceased  wife's  sister,  before  the  St.  of  Will.  IV.,  was  prevented 
from  being  made  irrevocable  by  that  statute,  only  by  the  institu- 
tion, a  week  before  its  passage,  of  a  suit  for  nullity  in  the  Ecclesias- 
tical Court  by  the  father  of  the  supposed  wife  ;  and  by  the  decision 
of  the  Privy  Council,  that  because,  if  the  marriage  was  not  set 
aside,  the  birth  of  a  child  of  the  marriage  would  impose  a  legal 
obligation  upon  the  grandfather  to  maintain  the  child  m  the 
event  of  its  being  poor,  lame  or  impotent,  and  unable  to  work, 
he  had,  according  to  the  rules  of  the  ecclesiastical  courts,  a  suffi- 
cient interest,  "although  of  an  extremely  minute  and  contingent 
character,"  to  support  such  a  suit.  Shcnvood  v.  Ray,  i  Moore 
P.  C.  353,  401,402. 

The  third  ground,  upon  which  alone  all  the  law  lords  agreed, 
was  that  the  St.  of  Will.  IV.  made  all  future  marriages  of  this 
kind  betvv-een  English  subjects,  having  their  domicil  in  England, 
absolutely  void,  because  declared  by  act  of  Parliament  to  be  con- 
trary to  the  law  of  God.  and  must  therefore  be  deemed  to  include 
such  marriages,  although  solemnized  out  of  the  British  dominions. 
The  law  of  England,  as  thus  declared  by  its  highest  legisla- 
tive and  judicial  authorities,  is  certainly  presented  in  a  remarkable 
aspect.  I  St.  Before  the  St.  of  Will.  IV.,  marriages  within  ihe 
prohibited  degrees  of  affinity,  if  not  avoided  by  a  direct  suit  for 
the  purpose  during  the  lifetime  of  both  parties,  had  the  same 
effect  in  England,  in  every  respect,  as  if  wholly  valid.  2d.  This 
statute  itself  made  such  marriages,  already  solemnized  in  Eng- 
land, irrevocably  valid  there,  if  no  suit  to  annul  them  was  already 
pending.  3d.  It  left  such  marriages  in  England,  even  before 
the  statute,  to  be  declared  illegal  in  the  Scotch  courts,  at  least 
30  far  as  rights  in  real  cstatd  in  Scotland  were  concerned.  4th. 
According  to  the  opinion  of  the  majority  of  the  law  lords,  it  did 
not  invalidate  marriages  of  English  subjects  in  English  colonies, 
in  which  a  different  law  of  marriage  prevailed.  5th.  But  it  did 
make  future  marriages  of  this  kind,  contracted  either  in  England 
or  in  a  foreign  country,  by  English  subjects  domiciled  in  Eng- 
land, absolutely  void,  because  declared  by  the  British  Parliament 
to  be  contrary  to  the  law  of  God. 

The  judgment  proceeds  upon  the  ground  that  an  act  of  Par- 
liament is  not  merely  an  ordinance  of  m?n,  but  a  conclusive  decla- 


348  PRIVATE    INTERNATIONAL    LAW. 

ration  of  ii'e  law  of  Goq  ,  and  the  result  is  that  the  law  of  God, 
as  declared  by  act  of  Parliament  and  expounded  by  the  House  of 
Lords,  varies  according  to  time,  place,  length  of  life  of  parties, 
pecuniary  interests  of  third  persons,  petitions  to  human  tribunals, 
and  technical  rules  of  statutory  construction  and  judicial  pro- 
cedure. 

The  case  recalls  the  saying  of  Lord  Holt,  in  London  v.  Wood, 
12  Mod.  669,  6S7,  688,  that  "an  act  of  Parliament  can  do  no 
wrong,  though  it  may  do  several  things  that  look  pretty  odd ;" 
and  illustrates  the  effect  of  narrow  views  of  policy,  of  the  doc- 
trine of  "the  omnipotence  of  Parliament,"  and  of  the  consequent 
imfamiharity  with  questions  of  general  jurisprudence,  upon  judges 
of  the  greatest  vigor  of  mind,  and  of  the  profoundest  learning  in 
the  municipal  law  and  in  the  forms  and  usages  of  the  judicial 
system  of  their  own  country. 

Such  a  decision,  upon  such  reasons,  from  any  tribunal,  how- 
ever eminent,  can  have  no  weight  in  inducing  a  court,  not  bound 
by  it  as  authority,  to  overrule  or  disregard  its  own  decisions. 

The  provision  of  the  Gen.  Sts.  c.  107,  §  25,  forbidding  the 
guilty  party  to  a  divorce  to  contract  another  marriage,  during  the 
life  of  the  other  party,  without  leave  of  this  court,  on  pain  of 
being  adjudged  guilty  of  polygamy,  does  not  create  a  permanent 
incapacity,  like  one  arising  from  consanguinity  or  affinity.  It  is 
rather  in  the  nature  of  the  imposition  of  a  penalty,  to  which  it 
would  be  difficult  to  give  any  extra-territorial  operation.  West 
Cambridge  v.  Lexington,  i  Pick.  506.  510,  512.  Clark  v.  Clark, 
8  Gush.  385,  386.  Upon  the  principles  and  authorities  stated  in 
the  earlier  part  of  this  opinion,  it  certainly  cannot  invalidate  a 
subsequent  marriage  in  another  state  according  to  its  laws,  at 
least  without  proof  that  the  parties  went  into  that  state  and  were 
married  there  with  the  intent  to  evade  the  provisions  of  the 
statutes  of  this  Commonwealth.  No  such  intent  being  shown  in 
this  case,  we  need  not  consider  its  effect,  if  proved,  nor  whether 
the  indictment  is  in  due  form.  See  Commomvealth  v.  Putnam, 
I  Pick.  136,  139;  Commomvealth  v.  Hunt,  4  Gush.  49. 

Neiv  trial  ordered. 

UNITED  STATES  v.  RODGERS,   1901. 
[109  Fed.  Rep.  886.] 

J.  B.  McPherson,  District  Judge.     The  relator  i:  a  natural- 
ized citizen  of  the  United  States,  and  is  the  husband  of  Rosa 


MARRIAGE. 


349 


Devine,  and  the  father  of  her  idiot  son,  William.  Rosa  and  Wil- 
liam are  Russian  Jews,  whom  the  commissioner  of  immigration 
at  the  port  of  Philadelphia  has  ordered  to  be  deported,  on  the 
ground  that  both  are  aliens,  and  that  William  is  an  idiot,  and 
Rosa  is  a  pauper  that  is  likely  to  become  a  public  charge.  Thc 
alienage  of  both  is  denied  upon  the  ground  that  when  the  hus- 
band and  father  became  a  citizen  the  wife  and  child  ceased  to  be 
aliens ;  and  this  is  the  only  point  to  be  decided.  The  decision  is 
admitted  to  depend  upon  the  answer  to  be  given  to  the  question 
whether  Rosa  is  the  relator's  lawful  wife,  or,  rather,  whether 
she  is  to  be  so  regarded  in  this  state;  for  she  is  her  husband's 
niece,  and  such  a  marriage,  if  originally  celebrated  in  Pennsyl- 
vania, would  be  void:  Act  i860,  §  39  (P.  L.  393)  ;  i  Purd.  Dig. 
(Ed.  1872)  p.  54.  Among  the  Jews  in  Russia,  however,  where 
the  ceremony  took  place,  it  has  been  satisfactorily  proved  that  a 
marriage  between  uncle  and  niece  is  lawful,  and.  being  valid 
there,  the  general  rule  undoubtedly  is  that  such  a  marriage  would 
be  regarded  everywhere  as  valid.  But  there  is  this  exception,  at 
least,  to  the  rule:  If  the  relation  thus  entered  into  elsewhere, 
although  lawful  in  the  foreign  country,  is  stigmatized  as  incest- 
uous by  the  law  of  Pennsylvania,  no  rule  of  comity  requires  a 
court  sitting  in  this  state  to  recognize  the  foreign  marriage  as 
valid.  I  think  the  following  quotation  from  Dr.  Reinhold  Schmid, 
a  Swiss  jurist  of  eminence,  to  be  found  in  Whart.  Confl.  Laws 
(2d  Ed.)  §  175,  correctly  states  the  proper  rule  upon  this 
subject : 

"When  persons  married  abroad  take  up  their  residence  with 
us,  it  is  agreed  on  all  sides  that  the  marriage,  so  far  as  its  formal 
requisites  are  concerned,  cannot  be  impeached,  if  it  corresponds 
either  with  the  laws  of  the  place  where  the  married  pair  had  their 
domicile,  or  with  those  where  the  marriage  was  celebrated.  I'.ut 
we  n.ust  not  construe  this  as  implying  that  the  juridical  validity  of 
the  marriage  depends  absolutely  on  the  laws  of  the  place  under 
whose  dominion  it  was  constituted :  for  the  fact  that  a  marriage 
was  void  by  the  laws  of  a  prior  domicile  is  no  reason  why  we 
should  declare  it  void  if  it  united  all  the  requisites  of  a  lawful 
maniage  as  they  are  imposed  by  our  laws.  So  far  as  concerns 
the  material  conditions  of  the  contract  of  marriage,  we  nuist  dis- 
tinguish between  such  hindrances  as  would  have  imneded  mar- 
riage, but  cannot  dissolve  it  when  already  concludea.  and  such 
as  would  actually  dissolve  a  marriage  if  celebrated  in  the  face  of 


350  PRIVATE    INTERNATIONAL    LAW. 

them.  A  matrimonial  relation  that  in  the  last  sense  is  prohibited 
by  our  laws  cannot  be  tolerated  in  our  territory,  though  it  was 
entered  into  by  foreigners  before  they  visited  us.  We  will,  there- 
fore, tolerate  no  polygamous  or  incestuous  unions  of  foreigners 
settling  within  our  limits." 

Other  authority  may  be  found  in  State  v.  Brown,  47  Ohio 
St.  102,  23  N.  E.  747,  where  it  is  said,  in  determining  the  effect 
of  a  statute  that  forbade  sexual  intercourse  between  persons 
nearer  of  kin  than  cousms : 

■'We  hold,  therefore,  that  by  section  7091,  Rev.  St.,  sexual 
commerce  as  between  persons  nearer  of  kin  than  cousins  is  pro- 
hibited, whether  they  have  gone  through  the  form  of  intermar- 
riage or  not ;  nor  is  it  material  that  the  marriage  w^as  celebrated 
m  a  country  where  it  was  valid,  for  we  are  not  bound  upon  prin- 
ciples of  comity,  to  permit  persons  to  violate  our  criminal  laws, 
adopted  in  the  interest  of  decency  and  good  morals,  and  based 
upon  principles  of  sound  public  policy,  because  they  have  assumed, 
in  another  state  or  country,  where  it  was  lawful,  the  relations 
which  led  to  the  acts  prohibited  by  our  laws." 

See,  also.  Inhabitants  of  Medway  v.  Inhabitants  of  Needham, 
16  Mass.  157,  8  Am.  Dec.  131,  and  In  re  StuU's  Estate,  183  Pa. 
625,  39  Atl.  16,  39  L.  R.  A.  559. 

In  view  of  this  exception  to  the  general  rule,  it  seems  to  me 
to  be  impossible  to  recognize  this  marriage  as  valid  in  Pennsyl- 
vania, since  a  continuance  of  the  relation  here  w'ould  at  once 
expose  the  parties  to  indictmment  in  the  criminal  courts,  and  to 
pimishment  by  fine  and  imprisonment  in  the  penitentiary.  In 
other  words,  this  court  would  be  declaring  the  relation  lawful, 
while  the  court  of  quarter  sessions  in  Philadelphia  county  would 
be  obliged  to  declare  it  unlawful.  Whatever  may  be  the  standard 
of  conduct  in  another  country,  the  moral  sense  of  this  community 
would  undoubtedly  be  shocked  at  the  spectacle  of  an  uncle  and 
niece  living  together  as  husband  and  wife ;  and  I  am,  of  course, 
bound  to  regard  the  standard  that  prevails  here,  and  to  see  that 
such  an  objectionable  example  is  not  presented  to  the  public.  A 
review  of  the  Pennsylvania  legislation  affecting  the  marriage  of 
uncle  and  niece  will  be  found  in  Parker's  Appeal,  44  Pa.  309.  It  is 
accordingly  ordered  that  Rosa  and  William  Devine  be  remanded 


25 


"As  a  general  rule,  mutual  present  consent  lawfully  expressed  makes  a 
good  common  law  marriage.     Cohabitation  adds  nothing  to  its  legal  effect. 


MARRIAGE.  351 

Bishop.  Mar.  &  Div.  Sec.  s/:  Dunwrcsly  v.  Fishly.  lo  Ky.  s^8:  Rose  v. 
Clark,  8  Paige  574;  Richard  v.  Brchm,  73  Pa.  140.  In  Michigan,  the  pres- 
ent consent  is  not  sufficient  to  constitute  a  valid  common  law  marriage, 
the  consent  must  be  followed  by  cohabitation.  Lorimcr  v.  Larimer,  124 
Mich.  6s I. 

The  "sealing  ceremony"  of  the  Mormon  church,  whereby  the  parties 
agreed  and  were  declared  by  a  church  official  to  be  married,  created  a  valid 
marriage,  though  the  parties  had  never  lived  together.  Hilton  v.  Roylance, 
Utah,  69  Pac.  Rep.  660.  The  case  of  Hyde  v.  Hyde,  L.  R.  i  Prob.  &  Div. 
J30.  refused  to  recognize  as  valid  in  England,  a  marriage  contracted  in 
Utah.  The  court  held  that  a  union  formed  between  a  man  and  woman  in 
a  foreign  country,  although  it  may  bear  the  name  of  a  marriage,  is  not  a 
valid  marriage  according  to  the  law  of  England,  unless  it  is  formed  on  the 
same  basis  as  marriages  throughout  Christendom,  and  be  in  its  essence 
the  voluntary  union  for  life  of  one  man  and  one  woman,  to  the  exclusion 
of  all  others. 

A  marriage  by  a  woman  to  her  deceased  husband's  brother,  held  valid 
in  England.  Huscy-Hunt  v.  Bozzclli,  i  Chan.  751  (1902).  A  marriage  on 
the  high  seas  in  order  to  evade  the  laws  of  the  state  is  void.  Norman  v. 
Thomson,  121  Cal.  620  (1898).  Indian  marriages  in  accordance  with  the 
custom  of  the  tribe  are  valid  in  this  country  although  such  marriages  are 
polygamous.  Earl  v.  Godley,  142  Minn.  361.  A  negro  man  and  a  white 
woman  both  domiciled  in  Virginia  went  to  Washington,  D.  C,  and  were 
married.  Ten  days  later  they  returned  to  Virginia.  Such  marriages  are 
void  in  Virginia.  The  parties  were  held  liable  to  criminal  prosecution. 
Kinney  v.  Comtnonzvealth,  30  Grat.  (Va.)  858. 

In  many  states,  laws  have  been  passed  providing,  in  case  of  divorce, 
that  the  guilty  party  shall  not  marry  during  the  lifetime  of  the  innocent 
consort. 

What  is  the  effect  of  such  a  law  or  decree  where  the  prohibited  party 
goes  into  another  state  and  is  there  married?  Some  courts  hold  the  second 
marriage  valid.  The  disability  to  marry  again  is  treated  as  a  penalty  and 
is  not  recognized  or  enforced  in  other  states.  Dickson  v.  Dickson,  i  Yerg. 
(Venn.)  no,  24  Am.  Dec.  444;  Putnam  v.  Putnam,  8  Pick.  (Mass.)  433; 
Van  J'oorhis  v.  Brintnall,  86  N.  Y.  18,  40  Am.  Rep.  303;  IVilson  v.  Holt, 
83  Ala.  528,  3  So.  Rep.  321;  Succession  of  Hernandez,  46  La.  Am.  962,  24 
L.  R.  A.  831:  Craz.ford  v.  State,  73  Miss.  172,  18  So.  Rep.  848,  33  L.  R.  A. 
224;  Thorp  V.  Thorp,  90  N.  Y.  602;  Moore  t'  Hegcman,  92  N.  Y.  321, 
44  Am.  Rep.  408.  Some  courts  hold  the  second  marriage  invalid.  Penne- 
gar  V.  State,  87  Tenn.  244,  10  S.  W.  303,  2  L.  R.  A.  703:  West  Cambridge 
'c.  Lexington,  i  Pick.  (Mass.)  306;  11  Am.  Dec.  231.  May  the  guilty  party 
on  his  return  to  his  domicil,  and  for  cohabitation  there  with  his  second 
wife,  be  punished  for  lewdness,  fornication,  adultery,  or  bigamy?  The 
courts  have  answered  this  in  the  negative.  State  v.  Jl'eatherby,  43  Me. 
248.  69  Am.  Dec.  39;  Cran'ford  v.  State,  73  Miss.  172,  33  L.  R.  A.  224;  Can. 
V.  Putnam,  I  Pick.  (Mass.)  136;  People  v.  Hovey,  3  Barb.  (N.  Y.)  117. 

If  the  statute  is  made  specific  enough,  the  guilty  party  may  be  punished 
on  his  return  to  his  domicil.  Com.  v.  Lane,  113  .Mass.  438.  iS  Am.  Rep. 
309;  State  V.  Kennedy,  76  N.  C.  231,  22  Am.  Rep.  65j.  In  the  case  of 
Thorp  V.  Thorp,  90  N.  Y.  602,  the  court  heli  that  such  second  marriage 
did  not  constitute  a  contempt  of  court. 


352  PRIVATE    INTERNATIONAL    LAW. 

PROPERTY   RIGHTS    OF    HUSBAND    AND    WIFE   AS 
AFFECTED   BY   THE   MARRIAGE. 

LONG  V.  HESS,   1895. 

[154  111.  482.] 

This  was  a  bill  in  chancery,  brought  by  William  Long  and 
Catherine  Gleim,  against  George  Hess,  Henry  Hess,  Louis  Hess, 
and  Mary  Kopf,  the  children,  Christina  Hess,  the  widow,  and 
Louis  Hess,  the  executor,  of  Jacob  Hess,  deceased,  to  set  aside 
the  will  of  Jacob  Hess,  and  to  declare  a  trust  in  favor  of  com- 
plainants in  two-sixths  of  the  estate  of  the  testator.  Jacob  Hess 
died  March  29,  1891,  in  LaSalle  county,  where  he  had  lived  for 
many  years,  leaving  an  estate  consisting  almost  exclusively  of 
lands  situate  in  that  county,  and  leaving  a  last  will,  by  which  he 
gave  his  entire  estate  to  his  widow  for  life,  and  after  providing 
for  the  payment  of  $100  each  to  the  complainants,  divided  the 
remainder  among  his  four  children  above  named. 

Jacob  Hess  and  Christma,  his  wife,  were  both  natives  of  the 
Grand  Duchy  of  Hesse,  now  a  part  of  the  German  Empire.  Prior 
to  their  marriage,  in  1846,  Christina  Hess  was  the  widow  of 
Bernhardt  Lang,  then  lately  deceased,  and  the  complainants  are 
her  children  by  her  former  marriage.  She  was  then  the  owner  of 
a  small  amount  of  property,  consisting  of  a  dwelling  house  and; 
certain  small  tracts  of  land,  but  the  amount  and  value  of  her 
property  are  not  clearly  shown  by  the  evidence.  Jacob  Hess  was 
at  the  same  time  the  owner  of  a  tract  of  land  of  the  value  of  35O' 
florins,  and  of  150  florins  in  cash.  Jacob  Hess  and  Christina 
Lang  being  about  to  be  married,  the  following  ante-nuptial  con- 
tract, as  is  claimed,  was  executed  between  them : 

"Knozv  all  men  by  these  presents,  that,  on  the  day  herein- 
after written,  a  true  and  irrevocable  marriage  contract  has  been 
agreed  upon  and  concluded  between  Jacob  Hess,  single,  lawful 
son  of  Adam  Hess,  citizen  and  baker  of  Beerfelden,  as  bride- 
groom, party  of  the  first  part,  and  Christina  Lang,  widow,  of 
Beerfelden,  as  bride,  party  of  the  second  part,  as  follows,  to-wit : 
The  said  parties  have  resolved  to  take  one  another  as  husband 
and  wife,  to  remain  in  joy  and  sorrow  until  death  shall  separate 
them,  and  to  have  their  marriage  solemnized  in  the  near  future 
by  a  priest.     As  regards  their  worldly  success  and  subsistence,. 


^ 


PROPERTY    RIGHTS    GF    HUSBAND    AND    WIFE.  353 

the  bride  agrees  to  receive  the  groom  to  hvc  at  her  house.  The 
groom  to  bring  into  the  marriage  that  piece  of  land  situ- 
ated at  Unter  Beerfeldcn  (district  of  Hetzbach),  described  at 
86.144,  N.  376.4.  181 5  Klftr.,  and  vahied  at  350  florins,  also  in 
cash  150  florins,  (in  words  one  hundred  and  fifty  florins.)  It  is 
further  agreed  that  the  two  children  of  the  bride,  of  her  first 
marriage,  shall  have  an  advancement  of  100  florins,  (in  words 
one  hundred  florins.)  with  the  tmderstanding  that  in  case  of  the 
death  of  one  of  the  said  children  the  surviving  child  is  to  inherit 
the  whole  of  the  said  advancement.  As  to  everything  else  the 
said  two  children  of  the  first  marriage  and  those  to  be  begotten  in 
this  marriage  shall  inherit  equally,  share  and  share  alike.  In  all 
other  cases  not  especially  enumerated  herein  the  contracting 
parties  subject  themselves  to  the  general  laws  of  Germany, 
especiallv  the  rules  and  customs  of  the  country. 
"Beerfelden,  May  11,  1846. 

Jakor  Hess,  Groom, 
Anna  Christina  Lang,  Bride, 
Eva  Christina  Hess,  Widow. 
Andreas  Schmahl. 
"Authenticated:  Newer,  Mayor." 

Shortly  after  these  proceedings  Jacob  Hess  and  Christina 
Lang  were  married,  and  as  the  fruit  of  such  marriage  their  four 
children,  now  defendants  in  this  suit,  were  afterwards  born. 
After  their  marriage  Hess  and  wife  lived  in  the  house  belonging 
to  the  wife,  the  complainants,  then  young  children,  being  mem- 
bers of  the  family.  There  seems  to  have  been  a  small  bakery 
on  the  premises,  and  Hess,  during  the  time  he  continued  to  live 
in  Germany,  carried  on  the  business  of  a  baker. 

In  May,  185 1,  Hess  and  wife  sold  the  property  they  owned 
in  Germany,  the  amount  realized  therefrom  being  a  little  over 
1000  florins,  or  about  $400,  and  they  then  came  to  this  country, 
bringmg  the  complainants  with  them.  They  first  settled  at 
Buffalo,  New  York,  where  Hess  seems  to  have  carried  on  the 
business  of  a  baker  in  a  small  way.  About  the  year  1858  he  re- 
moved with  his  family  to  LaSalle  county,  in  this  State,  where 
he  resided  up  to  the  time  of  his  death,  and  where  he  accumulated 
the  estate  which  he  attempted  to  dispose  of  by  will.  There  is 
no  evidence,  nor  does  it  seem  to  be  claimed,  that  any  portion  of 
the  avails  of  the  property  sold  in  Germany  went  into  or  formed 
a  part  of  the  estate  which  he  owned  at  his  death. 

23 


354  PRIVATE     INTERNATIONAL    LAW. 

The  complainants  insist  that  the  ante-nuptial  contract  above 
set  forth  is  to  be  construed  and  enforced  according  to  the  rules 
of  law  in  force  in  the  Grand  Duchy  of  Hesse  at  the  time  it  was 
entered  into ;  that  by  that  law  the  complainants  were  adopted  by 
Jacob  Hess,  and  became  heirs  of  his  estate  jointly  with  the  chil- 
dren born  of  the  marriage  then  about  to  be  solemnized ;  that  their 
right  to  succeed  to  the  estate  of  Hess  at  his  death  was  a  vested 
right,  and  one  which,  under  the  law  where  the  contract  was  made, 
was  incapable  of  being  divested  by  will,  and  therefore  that  the 
will  is  void  as  to  them,  or,  at  least,  that  the  devisees  should  be 
held  to  have  taken  the  lands  devised  to  them  subject  to  the  com- 
plainants' rights,  and  that  the  devisees  should  be  charged  as 
trustees  for  their  benefit. 

The  deposition  of  an  attorney  residing  in  Hesse,  and  learned 
in  the  laws  in  force  in  that  Grand  Duchy  at  that  time,  was  taken 
on  behalf  of  the  complainants,  and  it  is  claimed  that  the  local  law 
in  force  there  at  that  time  was  substantially  as  above  stated.  A 
motion  to  suppress  his  deposition  upon  the  ground,  among  other 
things,  that  it  was  not  taken  in  conformity  with  the  statute,  was 
made  by  the  defendants  and  overruled  by  the  court.  The  cause 
afterward  coming  on  to  be  heard  on  pleadings  and  proofs,  the 
court  found  the  equities  of  the  case  to  be  with  the  defendants,  and 
entered  a  decree  dismissing  the  bill  at  the  costs  of  the  complain- . 
ants.  From  that  decree  the  complainants  have  now  appealed  to 
this  court. 

Bailey,  J. :  The  defendants,  in  whose  favor  the  decree 
was  rendered,  now  urge,  with  a  considerable  degree  of  earnest- 
ness, that  the  court  below  erred  in  refusing  to  suppress  the 
de^Qiiitjon  taken  in  Germany,  on  the  ground  that  the  manner  in 
which  it  y/as  taken  was  a  clear  departure  from  that  prescribed 
by  the  statute  for  taking  the  depositions  of  foreign  witnesses. 
All  we  need  say  upon  that  point  is,  that  the  question  thus  raised 
is  noi  before  us  for  decision.  The  court  below  refused  to  suppress 
the  deposi^.ion  and  considered  it  as  evidence  on  the  final  hearing, 
but  upon  all  the  evidence  as  thus  presented  the  decision  of  the 
court  was  in  tlie  defendants'  favor  and  the  complainants  have 
appealed.  The  defendants  have  assigned  no  cross-errors,  and 
they  must  therefore  be  deemed  to  be  content  with  the  decision 
of  their  motion  to  suppress,  and  so,  for  all  the  purposes  of  this 
appeal,  the  deposition,  however  irregularly  it  may  have  been 
taken,  must  be  regarded  as  having  been  rightfully  retained  and 
considered  as  evidence  at  the  hearing. 


PROPERTY    RIG^iTS    OF    HUSBAND    AND    WIFE.  355 

The  only  question  presented  ])y  the  record  is  as  to  the  legal 
effect  upon  the  property  acquired  by  Jacob  lless  in  this  State, 
of  the  ante-nuptial  contract  entered  into  in  Germany  between 
him  and  his  then  intended  wife.  It  is  claimed  that  the  contract, 
when  considered  in  connection  with  the  judicial  proceedings  had 
thereon,  constituted,  in  legal  effect,  an  adoption  of  the  complain- 
ants by  Hess,  so  as  to  place  them  upon  the  same  footing,  as  far  as 
succession  to  his  property  and  estate  was  concerned,  with  the 
children  afterwards  born  of  the  marriage  then  in  contemplation  ; 
and  it  is  further  contended,  that  by  the  rules  of  law  in  force 
where  the  contract  was  made,  and  which  entered  into  and  formed 
a  part  of  it,  the  property  then  owned  by  Hess  and  by  his 
intended  wife,  as  well  as  that  afterwards  acquired  by  them, 
became  communal  property,  in  which  the  children  of  the  family, 
both  natural  and  adopted,  acquired  a  vested  right,  and  that  Hess 
could  not,  by  will,  divest  their  right  to  succeed  to  such  estate  as 
he  might  leave  at  his  death. 

After  considering  all  the  evidence,  we  are  left  in  very  grave 
doubt  whether  the  laws  of  the  Grand  Duchy  of  Hesse,  upon 
which  reliance  is  placed,  are  sufficiently  proved.  But  waiving 
that  pomt,  and  assuming  that  the  proof  is  sufficient,  and  that 
the  rules  of  law  prevaihng  in  Hesse  at  the  date  of  the  contract 
were  as  the  complainants  contend,  the  question  remains  whether 
the  ante-nuptial  contract  should  be  enforced  in  this  State  as  to 
property,  and  especially  real  property,  subsequently  acquired  by 
Hess  in  this  State. 

It  should  be  remembered  that  at  the  date  of  the  contract  the 
parties  were  living  at  Beerfelden,  in  the  Grand  Duchy  of  Hesse, 
and,  so  far  as  appears,  were  intending  to  remain  there  perma- 
nently. There  is  nothing,  either  in  the  contract  itself  or  in  the 
evidence,  having  the  least  tendency  to  show  that  their  removal 
to  any  other  place  was  then  contemplated.  The  evidence  fur- 
nished by  the  contract  is  all  in  the  direction  of  showing  that  their 
intention  was  to  make  Beerfelden  their  permanent  home.  The 
agreement  on  the  part  of  the  bride  was,  "to  receive  the  groom 
to  live  at  her  house,"  and  the  contract,  after  certain  stipulations 
as  to  the  property  brought  into  the  marriage  by  the  groom,  and 
as  to  the  rights  of  the  children  of  the  bride  by  her  former  mar- 
riage, concludes  with  the  provision,  that  "in  all  other  cases  not 
especially  enumerated  herein  the  contracting  parties  subject  them- 
selves to  the  general  laws  of  German  *,  especially  the  rules  and 
customs  of  the  country."     In  point  oi  fact,  Jacob  Hess,  after  his 


356  PRIVATE    INTERNATIONAL    LAW. 

marriage,  took  up  his  residence  at  his  wife's  house  and  made  that 
his  domicil,  and  thereupon  engaged  at  that  place  in  the  business 
of  a  baker,  which  he  carried  on  for  five  years.  He  then  sold  out 
his  property  there  and  emigrated  to  the  United  States. 

It  should  also  be  observed  that  there  is  a  total  absence  of 
any  express  provision  in  the  contract  making  it  applicable  to  the 
futvire._  acquisitions  of  the  contracting  parties.  It  deals  with  the 
property  thev  then  possessed,  but  makes  no  reference  to  such  as 
they  might  afterwards  gain.  The  only  language  in  the  contract 
on  which  any  reliance  is  placed  as  having  reference  to  future 
acquisitions  is  the  following:  "As  regards  their  worldly  success 
and  subsistence,  the  bride  agrees  to  receive  the  groom  to  live  at 
her  house.-^  If  these  words  are  correctly  translated  from  the 
original  German,  in  which  the  contract  was  written — and  we 
have  heard  no  suggestion  that  they  are  not, — they  are,  to  say 
the  least,  extremely  ambiguous,  and  we  are  able  to  put  upon  them 
no  rational  construction  which  would  make  out  of  them  an  agree- 
ment to  subject  the  future  acquisitions  of  the  parties  to  the  pro- 
visions of  the  contract.  The  most  probable  and  natural  inter- 
pretation of  the  words  would  seem  to  be,  that,  with  a  view  to  pro- 
viding for  the  worldly  success  and  the  subsistence  of  the  family, 
the  bride  agreed  to  receive  the  groom  to  live  at  her  house.  They 
can  not,  without  importing  into  them  a  meaning  which  does  not 
appear  upon  their  face,  be  held  to  have  any  direct  reference 
to  the  future  acquisitions  of  the  contracting  parties,  and  especi- 
ally their  acquisitions  after  emigrating  from  their  then  residence 
and  making  their  permanent  domicil  in  a  foreign  country. 

The  property  rights  of  husband  and  wife,  as  affected  by  the 
marriage  contract  itself,  or  by  an  ante-nuptial  agreement,  where 
the  marriage  or  the  ante-nuptial  agreement  has  been  entered 
into  in  a  foreign  country,  have  always  presented  questions  of  no 
little  perplexity  and  difficulty.  Story,  in  his  treatise  on  the  Con- 
flict of  Laws,  (sec.  143,)  says:  "The  principal  difficulty  is  not 
so  much  to  ascertain  what  rule  ought  to  govern  in  cases  of 
express  nuptial  contract,  at  least  where  there  is  no  change  of 
domicil,  as  what  rule  ought  to  govern  in  cases  where  there  is  no 
such  contract,  or  no  contract  which  provides  for  the  emergency. 
Where  there  is  an  express  nuptial  contract,  that,  if  it  speaks  fully 
to  the  very  point,  will  generally  be  admitted  to  govern  all  the 
property  of  the  parties,  not  only  in  the  matrimonial  domicil,  but 
in  every  other  place,  under  the  same  limitations  and  restrictions 
as  apply  to  other   cases   of  contract.      But   where  there   is   no 


PROPERTY    RIGHTS    OF    HUSBAND    AND    WIFE.  357 

express  nuptial  contract  at  all,  or  none  speaking  to  the  very  point, 
the  question,  what  rule  ought  to  govern,  is  surrounded  with 
more  difficulty."  The  learned  author  then,  after  an  extended 
examination  of  the  opinions  of  the  leading  law  writers  in  this 
country  and  in  Europe,  and  also  of  the  decisions  of  the  Supreme 
Court  of  Louisiana,  (the  only  court  which,  at  that  time,  seems 
to  have  given  these  questions  elahoratc  and  careful  considera- 
tion,) lays  down  the  following  propositions,  which,  as  he  says, 
although  not  universally  established  or  recognized  in  America, 
have  much  domestic  authority  for  their  support  and  have  none  in 
opposition  to  them : 

"(i)   Where  there  is  a  marriage  between  parties  in  a  foreign         _, 
country,    and    an    express    contract    respecting   their   rights   and      \ry, 
property,  present  and  future,  that,  as  a  matter  of  contract,  will  be 
held  equally  valid  everywhere,  unless,  under  the  circumstances, 
it  stands  prohibited  by  the  laws  of  the  country  where  it  is  sought 
to  be  enforced.     It  will  act  directly  on  movable  property  every- 
where.    But  as  to  immovable  property  in  a  foreign  territory  it 
will,  at  most,  confer  only  a  right  of  action,  to  be  enforced  accord- 
ing to  the  jurisprudence  rei  sitce.     (2)   Where  such  an  express 
contract  applies,  in  terms  or  intent,  only  to  present  property,  and 
there  is  a  change  of  domicil,  the  law  of  the  actual  domicil  will 
govern  the  rights  of  the  parties  as  to  all  future  acquisitions.     (3) 
Where  there  is  no  express  contract,  the  law  of  the  matrimonial 
domicil  will  govern  as  to  all  rights  of  the  parties  to  their  present 
property  in  that  place  and  as  to  all  personal  property  everyw^here, 
upon  the  principle  that  movables  have  no  situs,  or,  rather,  that 
they  accompany  the  person  everywhere.     As  to  immovable  prop- 
erty the  law  rci  sifcr  will  prevail.      (4)   Where  there  is  no  change 
of  domicil,  the  same  rule  will  apply  to  future  acquisitions  as  to 
present  property.     (5)   But  where  there  is  a  change  of  domicil, 
the  law  of  the  actual  domicil,  and  not  the  matrimonial  domicil, 
will   ;overn  as  to  all  Juture  acquisitions  of  movable  property,  and 
as  to  all  immovable  property  the  law  reisitcr."     Story  on  Conflict 
of  Laws,  sec.  184  ef  seq. 

The  propositions  thus  laid  down  by  Judge  Story  seem  to 
have  received  the  general  approval  of  the  courts  of  this  counrty, 
so  far  as  there  has  been  occasion  to  consider  them  since  he  wrote. 
Thus?  in  fuss  v.  Fuss,  24  Wis.  256.  parties  domiciled  in  Prussia 
were  married  there,  and  afterward  entered  into  a  post-nuptial 
contract,  whereby  each  granted  and  transferred  to  the  other  all 
real  and  personal  property  which  should  belong  to  the  donator 


£58  PRIVATE    INTERNATIONAL    LAW. 

on  the  day  of  his  death.  The  wife,  at  the  time,  owned  real  estate 
in  Prussia,  over  which,  by  the  laws  of  that  country,  she  had  full 
control  and  right  of  disposal.  Several  years  afterward  the  prop- 
erty was  sold,  the  husband  taking  the  money  and  investing  it  in 
land  in  Wisconsin,  to  which  the  parties  removed,  and  on  which 
they  resided  until  the  husband's  death.  He  also,  during  his  life- 
time, acquired  other  property,  both  real  and  personal,  situate  in 
Wisconsin,  which  he  owned  on  the  day  of  his  death.  By  his 
last  will  the  husband  devised  and  bequeathed  all  his  property, 
both  real  and  personal,  to  his  widow  for  life,  with  remainder  to 
the  brothers  and  sisters  of  the  testator.  On  bill  filed  by  the 
widow,  claiming  that,  by  force  of  the  post-nuptial  contract,  she 
was  entitled  to  an  estate  in  fee  in  the  lands  and  to  t;lie  absolute 
ownership  of  the  personal  property  left  by  her  husband,  it  was 
held  that  there  was  nothing  in  the  contract  which  spoke  to  the 
very  point, — that  it  contained  nothing  which  manifested  any 
intention  in  the  parties  to  regulate  or  control  by  it,  according  to 
the  law  of  their  matrimonial  domicil,  the  future  acquisitions  and 
gains  of  property  in  any  foreign  State  or  territory  or  any  property 
which  should  be  held  by  the  husband  in  such  State  or  territory, 
and,  consequently,  that  the  property  acquired  and  owned  by  the 
husband  in  Wisconsin  in  his  own  name  was  subject  to  be  disposed 
of  by  him,  by  will  or  otherwise,  according  to  the  laws  of  that 
State,  and  that  the  widow's  rights  therein  were  not  determined 
by  the  contract. 

In  Castro  v.  lilies,  22  Texas,  479,  substantially  the  same 
doctrine  was  laid  down,  although,  as  that  case  arose  out  of  a  con- 
troversy between  a  wife  claiming  under  an  ante-nuptial  contract 
and  execution  creditors  of  the  husband,  the  decision  is  not  in  all 
respects  so  directly  in  point  as  the  one  last  cited.  There  parties 
domiciled  in  Paris,  France,  executed  an  ante-nuptial  contract  and 
married  in  Paris.  Some  years  afterward  they  emigrated  to  this 
couuli-v  and  became  domiciled  in  Texas,  where  the  husband  subse- 
quently acquired  certain  real  property.  It  was  claimed  that  by 
the  rules  of  the  French  law  the  contract  vested  in  the  wife  a  cer- 
tain interest  in  the  property  acquired  by  her  husband  which  was 
not  subject  to  seizure  for  her  husband's  debts,  but  it  was  held  that 
as  there  were  in  the  contract  no  words  "speaking  to  the  very 
point," — that  is,  no  words  making  the  contract  specifically  appli- 
cable to  property  subsequently  acquired  by  the  husband  in  a  State 
or  country  foreign  to  that  in  which  the  contract  was  made, — it 


PROPERTY    RIGHTS    OF    HUSBAND    AND    WIFE.  359 

had  no  operation  upon  lands  subsequently  acquired  by  the  hus- 
band in  Texas. 

In  Bcsse  v.  Pcllochoux,  73  111.  285,  an  ante-nuptial  contract 
was  made  between  parties  domiciled  in  Switzerland  in  regard  to 
property  to  be  occupied  during  the  marriage,  it  appearing  that 
the  contract  contemplated  no  change  of  domicil,  but  was  to  be 
performed  in  the  place  where  it  was  made,  and  it  was  held  tiiat 
the  contract  did  not  affect  real  estate  acquired  in  this  State  by 
the  husband  after  their  emigration  to  this  country.  In  the  opinion 
the  doctrine  laid  down  by  Judge  Story  was  cited  with  approval, 
and  it  was  said  that  in  that  case  there  was  nothing  in  the  contract 
"speaking  to  the  very  point," — that  manifested  any  intention  that 
all  future  acquisitions  of  property  in  foreign  countries  should  be 
controlled  by  it.  See,  also,  Lyon  v.  Knott,  26  Miss.  548 ;  Knee- 
land  V.  Ensley,  Meigs,  620;  San!  v.  Creditors,  5  Martin  (N.  S.) 
569;  LeBrcton  v.  Myers,  8  Paige,  261;  Gale  v.  Davis'  Heirs,  4 
Martin  (O.  S.),  645. 

The  case  of  Decouche  v.  Savetier,  3  Johns.  Ch.  190,  is  one 
where  an  ante-nuptial  contract,  entered  into  by  the  parties  in 
Paris,  was  enforced  in  this  country  in  favor  of  the  wife,  to  the 
exclusion  of  the  husband's  relatives.  But  there  the  contract 
expressly  provided  that  there  shall  be  a  community  of  property 
between  them,  according  to  the  custom  of  Paris,  which 
is  to  govern  the  disposition  of  the  property,  though  the  parties 
should  hereafter  settle  in  countries  where  the  laws  and  usages 
are  different  or  contrary.''  There  the  intention  to  make  the 
contract  applicable  to  property  afterward  acquired  in  foreign 
countries  was  expressly  made  to  appear  by  "words  speaking  to 
the  very  point." 

Considerable  reliance  is  placed  by  the  complainants  upon  the 
case  of  Schefcrling  v.  Huftinan,  4  Ohio  St.  241,  where  the  ante- 
nuptial contract  entered  into  by  the  parties  in  Germany,  in  wliich 
it  was  agreed  that  all  the  property  of  the  intended  wife  which 
she  then  owned  or  which  should  be  mutually  acquired  by  the 
parties  during  coverture  should  be  the  property  of  the  wife,  was 
sustained  and  enforced,  and  held  to  apply  to  the  property  acquired 
by  them  in  the  State  of  Ohio  after  their  emigration  to  this  coun- 
try. It  will  be  noticed,  however,  that  in  that  case  the  contract, 
by  its  express  terms,  was  made  applicable  not  only  to  the  prop- 
erty then  owned  by  the  intended  wife,  but  also  to  all  property 
acquired  during  the  continuance  of  tl.j  marriage.  It  is  there- 
fore  clearly    distinguishable    from    the    present   case,   where    no 


360  PRIVATF,    INTERNATIONAL    LAW. 

express  provision  is  made  applicable  to  property  acquired  in  this 
State  after  the  parties  became  domiciled  here. 

We  are  therefore  of  the  opinion  that  the  ante-nuptial  con- 
'^^  tract  in  this  case  is  not  appHcable  to  real  property  acquired  by 

Hess  in  this  State  after  his  emigration  to  this  country,  but  that 
such  property  was  subject  to  disposition  by  him,  by  deed  or  will, 
according  to  the  laws  of  this  State.  His  will,  therefore,  must  be 
valid,  so  as  to  vest  in  his  devisees  a  title  which  must  prevail  over 
any  rights  derived  by  the  complainants  from  the  ante-nuptial 
contract. 

We  are  unable  to  see  that  any  peculiar  force  is  to  be  given 
to  the  fact  that  complainants,  at  the  time  Jacob  Hess  and  wife 
emigrated  to  this  country,  were  infants,  and  therefore  incapable 
of  consenting  to  a  change  of  their  domicile,  or  of  waiving  any 
rights  which  were  secured  to  them  by  the  contract.  As  the  con- 
tract can  not  be  held  to  have  any  application  to  the  property 
sought  to  be  reached  in  this  case,  no  rights  of  theirs  were  affected 
by  their  being  brought  to  this  country,  and  they  had  nothing  to 
waive.  Even  if  it  be  admitted  that,  by  reason  of  their  legal 
adoption  by  Jacob  Hess,  they  would  have  been  entitled  to  suc- 
ceed to  his  estate,  at  his  death,  as  his  heirs-at-law,  the  ante- 
nuptial contract  furnished  no  obstacle  to  the  exercise  by  Hess  of 
his  right  to  dispose  of  his  estate  by  will,  and  he  having  done  so, 
nothing  was  left  to  descend  to  the  complainants  as  his  heirs-at- 
law.  Although  the  complainants  may  have  acquired  the  status 
of  adopted  children  and  heirs-at-law  by  the  contract  and  judicial 
proceedings  had  in  Germany,  their  inheritance  of  after-acquired 
real  estate  situated  in  this  State  must  be  in  accordance  with  our 
laws,  and  by  our  laws  a  testator  has  an  absolute  right  to  dispose 
of  his  property  by  will,  even  to  the  exclusion  alike  of  his  natural 
or  his  adopted  children. 

We  are  of  the  opinion  that  the  decree  of  the  circuit  court 
is  justified  by  the  evidence,  and  it  will  accordingly  be  affirmed.^*' 


V 


'""The  authorities  are  quite  generally  in  accord  in  selecting  the  matri- 
monial domicil  as  the  place  which  shall  furnish  the  law  regulating  the 
interests  of  husband  and  wife  in  the  movable  property  of  either,  which  was 
in  esse  when  the  marriage  took  place.  Perplexing  questions  sometimes 
arise  as  to  what  place  shall  be  deemed  the  true  matrimonial  domicil  in  the 
sense  of  this  rule.  Mr.  Justice  Story  supposes  a  case  where  neither  of 
the  parties  has  a  domicil  in  the  place  where  the  marriage  was  celebrated, 
and  the  parties  were  there  in  transitu,  or  during  a  temporary  residence, 
or  on  a  journey  made  for  that  sole  purpose  animo  rcvertendi,  and  says  that 
the  principle  maintained  by  foreign  jurists  in  such  cases  would  be  that 
the  actual  or  intended  domicil  of  the  parties  would  be  deemed  to  be  the 


PROPERTY    RIGHTS    OF    HUSBAND    AND    WIFE.  361 

true  matrimonial  domicil ;  or.  to  express  the  doctrine  in  a  more  general 
form,  that  the  law  of  the  place  where,  at  the  time  of  the  marriage,  the 
parties  intended  to  fix  their  domicil  would  govern  all  the  rights  resulting 
from  the  marriage. 

"He  also  supposes  the  case  of  a  man  domiciled  in  one  state  marrying 
a  lady  domiciled  in  another  state,  and  says  that  foreign  jurists  would  hold 
that  the  matrimonial  domicil  would  be  the  domicil  of  the  husband  if  it  was 
the  intention  of  the  parties  to  fix  their  residence  there,  or  the  domicil  of 
the  wife  if  it  was  their  intention  to  fix  their  residence  there,  or  in  a  differ- 
ent place  from  the  domicil  of  either  the  husband  or  wife  if  they  intended  to 
establish  their  matrimonial  domicil  in  some  other  place.  He  then  refers 
to  the  decisions  of  the  courts  of  Louisiana,  adopting  the  same  principle, 
and  concludes  that,  under  these  circumstances,  where  there  is  such  a 
general  consent  of  foreign  jurists  to  the  doctrine  thus  recognized  in  Amer- 
ica, it  is  not,  perhaps,  too  much  to  afiirm  that  a  contrary  doctrine  will 
scarcely  hereafter  be  established  ;  for,  in  England  as  well  as  in  America, 
in  the  interpretation  of  other  contracts,  the  laws  of  the  place  where  they 
are  to  be  performed  has  been  held  to  govern."  Harral  v.  Harral,  29  ^ ■  J- 
Eq.  279;  Tozaics  v.  Durbiti,  3  Met.  (Ky.)  252;  Castlcman  v.  Jeffries,  6a 
Ala.  380. 

When  personal  property  becomes  the  husband's  by  the-  law  of  the 
domicil,  a  subsequent  change  of  domicil  will  not  change  his  rights.  Caha- 
Ian  V.  Mtinroe,  70  Ala.  271.  When  personal  property  remains  in  wife,  sub- 
sequent change  of  domicil  will  not  change  her  rights.  Reid  v.  Gray,  27  Pa. 
508.  As  to  wife's  rights  in  husband's  property  see  Kraemer  v.  Kraemer, 
32  Cal,  202. 


■l( 


CHAPTER  XII. 

PERSONAL  PROPERTY  AND  REAL  PROPERTY. 

GREEN  V.  VAN  BUSKIRK,  1866,  1886. 

[5  Wall.  307,  7  Wall.  139.] 

1.  Extra-territorial  Effect  of  Trans-       3.  Mortgages  of  Personal  Property. 

fers  of  Personal  Property.  4.  Gifts  of  Personal  Property. 

2.  Conditional  Sales  of  Personal  5.  Conveyances  of  Real  Property. 

Property. 

Motion  to  dismiss  a  writ  of  error  to  the  Supreme  Court 
of  the  State  of  New  York. 

The  Constitution  of  the  United  States  declares  (Section  i, 
Article  IV)  that  full  faith  and  credit  shall  be  given  in  each  State 
to  the  public  acts,  records,  and  judicial  proceedings  of  every  other 
State ;  and  that  Congress  may  by  general  laws  prescribe  the  man- 
ner in  which  such  acts,  records,  and  proceedings  shall  be  proved, 
and  the  effect  thereof. 

Under  the  power  here  conferred,  Congress,  by  act  of  1790. 
May  26,  I  Stat,  at  Large,  122,  provides  that  records,  authenti- 
cated in  a  way  which  it  prescribes,  shall  "have  such  faith  and 
credit  given  to  them  in  ever  other  court  of  the  United  States, 
as  they  have  by  law  or  usage  in  the  court  from  which  they  are 
taken." 

With  this  provision  of  the  Constitution  and  this  law  in  force, 
Bates  being  the  owner  of  certain  iron  safes  at  Chicago,  in  the 
State  of  Illinois,  on  the  3d  day  of  November,  1857,  executed  and 
delivered,  in  the  State  of  New  York,  to  Van  Buskirk  and  others, 
a  chattel  mortgage  of  them.  On  the  5th  day  of  the  same  month 
Green  caused  to  be  levied  on  the  same  safes  a  writ  of  attachment, 
sued  by  him  out  of  the  proper  court  in  Illinois,  against  the  prop- 
erty of  Bates.  The  attachment  suit  proceeded  to  judgment,  and 
the  safes  were  sold  in  satisfaction  of  Green's  debt.  Van  Buskirk, 
Green,  and  Bates,  were  all  citizens  of  New  York.  Green's  attach- 
ment was  levied  on  the  safes  as  the  property  of  Bates,  before  the 
possession  was  delivered  to  Van  Buskirk,  and  before  the  mortgage 
from  Bates  to  him  was  recorded,  and  before  notice  of  its  existence. 

Van    Buskirk    afterwards    sued    Green,    in    the    New    York 


PERSONAL  PROPERTY  AND  REAL  PROPERTY.  363 

courts,  for  ihe  value  of  the  safes  thus  sold  under  his  attachment,^ 
and  Green  pleaded  the  proceedini^  in  the  court  of  Illinois  in  bar 
of  the  action.  In  this  suit  thus  brought  by  him  in  the  New  York 
courts,  Van  Ruskirk  obtained  judgment,  and  the  judgment  was 
affirmed  in  the  highest  court  of  the  State  of  New  York.  From 
this  affirmance  Green  took  a  writ  of  error  to  this  court,  assuming 
the  case  to  fall  within  the  twenty-fifth  section  of  the  Judiciary  Act, 
which  gives  such  writ  in  any  case  wherein  is  drawn  in  question 
a  clause  of  the  Constitution  of  the  United  States,  and  the  decision 
is  against  the  title,  right,  or  privilege  especially  set  up.  His 
assumption  w^as  that  the  faith  and  credit  which  the  judicial  pro- 
ceedings in  the  courts  of  the  State  of  Illinois  had  by  law  and 
usage  in  that  State,  were  denied  to  them  by  the  decision  of  the 
courts  of  New  Y'ork,  and  that  in  such  denial,  those  courts  decided 
against  a  right  claimed  by  him  under  the  above-mentioned  Sec- 
tion I,  Article  IV,  of  the  Constitution,  and  the  act  of  Congress 
of  May  26th,  1790,  on  the  subject  of  it. 

Mr.  Justice  Miller  delivered  the  opinion  of  the  court. 

The  section  of  the  Constitution  discussed  in  this  case,  de- 
clares that  "full  faith  and  credit  shall  be  given  in  each  State  to 
the  public  acts,  records,  and  judicial  proceedings  of  every  other 
State.  And  that  Congress  may,  by  general  laws,  prescribe  the 
manner  in  wdiich  such  acts,  records,  and  proceedings  shall  be 
proved,  and  the  effect  thereof.'' 

The  act  of  1790  was  intended  to  be  an  exercise  of  the  powder 
conferred  upon  Congress  by  this  section.  In  the  leading  case  of 
Mills  V.  Duryee,  7  Cranch.  481,  this  court  held  that  the  act  in 
question  did  declare  the  effect  of  such  judicial  records,  and  that 
it  should  be  the  same  in  other  States  as  that  in  which  the  proceed- 
ings were  had.  In  the  case  of  Christmas  v.  Russell,  supra,  last 
preceding  case,  p.  290.  decided  at  the  present  term  of  the  court, 
we  have  reaffirmed  this  doctrine,  and  have  further  declared  that 
no  State  can  impair  the  eft'ect  thus  to  be  given  to  judicial  pro- 
ceedings in  her  sister  State,  by  a  statute  of  limitation  intended 
to  operate  on  demands  which  may  have  passed  into  judgment  by 
such  proceedings,  as  though  no  such  judgment  had  been  rendered. 

The  record  before  us  contains  the  pleadings  in  the  case,  the 
facts  found  by  the  court,  and  the  conclusions  of  law  arising 
thereon.  And  notwithstanding  the  inverted  manner  in  which 
the  court  has  stated  its  legal  conclusions,  it  seems  clear  that  it 
did  pass  upon  the  effect  of  the  judici-l  proceeding,    in   Ilhnois 


364  PRIVATE    INTERNATIONAL    LAW. 

Upon  the  title  of  the  property  in  contest.  The  case  is  not  varied 
by  declaring  that  the  mortgage  made  and  delivered  in  New  York 
overreached  the  subsequent  attachment  in  Illinois.  According  to 
the  view  taken  by  that  court,  Van  Buskirk,  the  plaintiff,  had 
title  to  the  property  under  the  laws  of  New  York  by  virtue  of 
his  mortgage,  and  the  question  to  be  decided  was  whether  the 
proceedings  in  Illinois  were  paramount  in  their  effect  upon  the 
title  to  the  New  York  mortgage. 

It  is  said  that  Van  Buskirk  being  no  party  to  the  proceed- 
ings in  Illinois  was  not  bound  by  them,  but  was  at  liberty  to 
assert  his  claim  to  the  property  in  any  forum  that  might  be  open 
to  him ;  and,  strictly  speaking,  this  is  true.  He  was  not  bound 
by  way  of  estoppel,  as  he  would  have  been  if  he  appeared  and  sub- 
mitted his  claim,  and  contested  the  proceedings  in  attachment. 
He  has  a  right  to  set  up  any  title  to  the  property  which  is  superior 
to  that  conferred  by  the  attachment  proceedings,  and  he  has  the 
further  right  to  show  that  the  property  was  not  liable  to  the  at- 
tachment— a  right  from  which  he  would  have  been  barred  if 
he  had  been  a  party  to  that  suit.  And  the  question  of  the  liability 
of  the  property  in  controversy  to  that  attachment  is  the  question  Jj  J/j  ^ 
which  was  raised  by  the  suit  in  New  York,  and  which  was  there  '  ' 
decided.  That  court  said  that  this  question  must  be  decided  by  the 
laws  of  the  State  of  New  York,  because  that  was  the  domicile  of 
the  owner  at  the  time  the  conflicting  claims  to  the  property 
originated. 

We  are  of  opinion  that  the  question  is  to  be  decided  by  the  • 
effect  given  by  the  laws  of  Illinois,  where  the  property  was  situ- 
ated, to  the  proceedings  in  the  courts  of  that  State,  under  which  it 
was  sold. 

There  is  no  little  conflict  of  authority  on  the  general  ques- 
tion as  to  how  far  the  transfer  of  personal  property  by  assign- 
ment or  sale,  made  in  the  country  of  the  domicil  of  the  owner,  will 
be  held  to  be  valid  in  the  courts  of  the  country  where  the  prop- 
erty is  situated,  when  these  are  in  different  sovereignties.  The 
learned  author  of  the  Commentaries  on  the  Conflict  of  Laws,  has 
discussed  the  subject  with  his  usual  exhaustive  research.  And 
it  may  be  conceded  that  as  a  question  of  comity,  the  weight  of  his 
authority  is  in  favor  of  the  proposition  that  such  transfers  will 
generally  be  respected  by  the  courts  of  the  country  where  the 
property  is  located,  although  the  mode  of  transfer  may  be  dif- 
ferent from  that  prescribed  by  the  local  law.  The  courts  of 
Vermont   and   Louisiana,   which   have   given   this   question   the 


kJ- 


PERSONAL  PROPERTY  AND  REAL  PROPERTY.  365 

fullest  consideration,  have,  however,  either  decided  adversely  to 
this  doctrine  or  essentially  modified  it.  Taylor  v.  Board  man .  25 
Vermont,  589;  IVard  v.  Morrison,  Id.  593;  Emerson  v.  Partridge, 
27  Vermont,  8;  Oliver  v,  Toume,  14  Martin's  Louisiana.  93; 
Norris  v.  Mumford,  4  Id.  20.  Such  also  seems  to  have  been  the 
view  of  the  Supreme  Court  of  Massachusetts.  Lanfcar  v.  Sum- 
ner, 17  Massachusetts.  110. 

But  after  all.  this  is  a  mere  principle  of  comity  between  the 
courts,  which  n:ust  give  way  when  the  statutes  of  the  country 
where  property  is  situated,  or  the  established  policy  of  its  laws 
prescribe  to  its  courts  a  different  rule.  The  learned  commentator, 
already  referred  to,  in  speaking  of  the  law  in  Louisiana  which 
gives  paramount  title  to  an  attaching  creditor  over  a  transfer 
made  in  another  State,  which  is  the  domicil  of  the  owner  of  the 
property,  says:  "No  one  can  seriously  doubt  that  it  is  competent 
for  any  State  to  adopt  such  a  rule  in  its  own  legislation,  since  it 
has  perfect  jurisdiction  over  all  property,  personal  as  well  as 
real,  within  its  territorial  limits.  Nor  can  such  a  rule,  made  for 
the  benefit  of  innocent  purchasers  and  creditors,  be  deemed  justly 
open  to  the  reproach  of  being  founded  in  a  narrow  or  a  selfish 
policy."  Story  on  the  Conflict  of  Law^s,  §  390.  Again,  he  says: 
"Every  nation,  having  a  right  to  dispose  of  all  the  property  actu- 
ally situated  within  it,  has  (as  has  been  often  said)  a  right  to 
protect  itself  and  its  citizens  against  the  inequalities  of  foreign 
laws,  wdiich  are  injurious  to  their  interests." 

Chancellor  Kent,  in  commenting  upon  kindred  subject, 
namely,  the  law  of  contracts,  remarked,  2  Commentaries.  599: 
"But,  on  this  subject  of  conflicting  laws,  it  may  be  generally  ob- 
served that  there  is  a  stubborn  principle  of  jurisprudence  that  will 
often  intervene  and  act  with  controlling  efiicacy.  This  principle 
is,  that  wdiere  the  lex  loci  contractus  and  the  lex  fori,  as  to  con- 
flicting rights  acquired  in  each,  come  in  direct  collisio.i,  the 
comity  of  nation?  must  yield  to  the  positive  law  of  the  land." 

In  the  case  of  Milne  v.  Moreton,  6  Binney,  361,  the  Supreme 
Court  of  Pennsylvania  says,  that  "every  country  has  a  right  of 
regulating  the  transfer  of  all  personal  property  within  its  terri- 
tory ;  but  when  no  positive  regulation  exists,  the  owner  transfers 
it  at  his  pleasure." 

The  Louisiana  court,  in  a  leading  case  on  this  subject,  gives 
in  the  following  language,  a  clear  statement  of  the  foundation  of 
this  principle:  "The  municipal  laws  of  a  country  have  no  force 
beyond  its  territorial  limits,  and  when  another  government  per- 


366  PRIVATE    INTERNATIONAL    LAW. 

mits  these  to  be  carried  into  effect  within  her  jurisdiction,  she 
does  so  upon  a  principle  of  comity.  In  doing  so,  care  must  be 
taken  that  no  injury  is  inflicted  on  her  own  citizens,  otherwise 
justice  would  be  sacrificed  to  comity.  ...  If  a  person  sends  his 
property  within  a  jurisdiction  different  from  that  where  he  re- 
sides, he  impliedly  submits  it  to  the  rules  and  regulations  in  force 
in  the  country  where  he  places  it." 

Apart  from  the  question  of  authority,  let  us  look  at  some  of 
the  consequences  of  the  doctrine  held  by  the  court  of  New  York. 

If  the  judgment  rendered  against  the  plaintiff   in  error   is 
well  founded,  then  the  sheriff  who  served  the  writ  of  attachment,     /  y/ 
the  one  who  sold  the  property  on  execution,  any  person  holding    ^ 
it  in  custody  pending  the  attachment  proceedings,  the  purchaser 
at  the  sale,  and  all  who  have  since  exercised  control  over  it,  are 
•equally  liable. 

If  the  judgment  in  the  State  of  Illinois,  while  it  protects  all 
such  persons  against  a  suit  in  that  State,  is  no  protection  any- 
where else,  it  follows  that  in  every  case  where  personal  property 
has  been  seized  imder  attachment,  or  execution  against  a  non- 
resident debtor,  the  officer  whose  duty  it  was  to  seize  it,  and  any 
other  person  having  an\  of  the  relations  above  described  to  the 
proceeding,  may  be  sued  in  any  other  State,  and  subjected  to 
heavy  damages  by  reason  of  secret  transfers  of  which  they  could 
know  nothing,  and  which  were  of  no  force  in  the  jurisdiction 
where  the  proceedings  were  had,  and  where  the  property  was 
located. 

Another  consequence  is  that  the  debtor  of  a  non-resident 
may  be  sued  by  garnishee  process,  or  by  foreign  attachment  as  it  O 
is  sometimes  called,  and  be  compelled  to  pay  the  debt  to  some  one 
having  a  demand  against  his  creditors ;  but  if  he  can  be  caught 
in  some  other  State,  he  may  be  made  to  pay  the  debt  again  to 
some  person  who  had  an  assignment  of  it,  of  which  he  was  igno- 
rant   vhen  he  was  attached. 

The  article  of  the  Constitution,  and  the  act  of  Congress 
relied  on  bv  the  plaintiff'  in  error,  if  not  expressly  designed  for 
such  cases  as  these,  find  in  them  occasions  for  their  most  bene- 
ficent operation. 

We  do  not  here  decide  that  the  proceedings  in  the  State  of 
Illinois  have  there  the  effect  which  plaintiff  claims  for  them ; 
because  that  must  remain  to  be  decided  after  argument  on  the 
■merits  of  the  case.  But  wc  hold  that  the  effect  which  these  pro- 
ceedings have  there,  by  the  law  and  usage  of  that  State,  was  a 


PERSONAL  PROPERTY  AND  REAL  PROPERTY.  367 

question  necessarily  decided  by  the  New  York  courts,  and  that 
It  was  decided  a^^ainst  the  claim  set  up  by  plaintiff  in  error  under 
the  constitutional  provision  and  statute  referred  to,  and  that  the 
case  is  therefore  properly  here  for  review. 

Motion  to  dismiss  overruled. 

Mr.  Justice  Davis  delivered  the  opinion  of  the  court. 

That  the  controversy  in  this  case  was  substantially  ended 
when  this  court  refused  (5  Wallace,  312)  to  dismiss  the  writ  of 
error  for  want  of  jurisdiction,  is  quite  manifest  by  the  effort 
which  the  learned  counsel  for  the  defendants  in  error  now  make, 
to  escape  the  force  of  that  decision. 

The  question  raised  on  the  motion  to  dismiss  was,  whether  I 
the  Supreme  Court  of  New  York,  m  this  case,  had  decided  ' 
against  a  right  which  Green  claimed  under  the  Constitution,  and  I 
an  act  of  Congress.  If  it  had,  then  this  court  had  jurisdiction  | 
to  entertain  the  writ  of  error,  otherwise  not. 

It  was  insisted  on  the  one  side,  and  denied  on  the  other,  that 
the  faith  and  credit  which  the  judicial  proceedings  in  the  courts 
of  the  State  of  Illinois  had  by  law  and  usage  in  that  State,  were 
denied  to  them  by  the  Supreme  Court  of  New  York,  in  the 
decision  which  was  rendered. 

Whether  this  was  so  or  not,  could  only  be  properly  con- 
sidered when  the  case  came  to  be  heard  on  its  merits;  but  this 
court,  in  denial  of  the  motion  to  dismiss,  held  that  the  Supreme 
Court  of  New  York  necessarily  decided  7vliat  effect  the  attacii- 
ment  proceedings  in  Illinois  had  by  the  law  and  usage  in  that 
State;  and  as  it  decided  against  the  effect  which  Green  claimed 
for  them,  this  court  had  jurisdiction,  under  the  clause  of  the  Con- 
stitution which  declares  "that  full  faith  and  credit  shall  be  given 
in  each  State  to  the  public  acts,  records,  and  judicial  proceedings 
in  every  other  State,'  and  the  act  of  Congress  of  1790,  which  gives 
to  those  proceedings  the  same  faith  and  credit  in  other  States,  that 
they  have  in  the  State  in  wliich  they  were  rendered. 

This  decision,  supported  as  it  was  by  reason  and  authority, 
left  for  consideration,  on  the  hearing  of  the  case,  the  inquiry, 
whether  the  Supreme  Court  of  New  York  did  give  to  the  attach- 
ment proceedings  in  Illinois  the  same  effect  they  would  have 
received  in  the  courts  of  that  State. 

By  the  statutes  of  Illinois,  any  creditor  can  sue  out  a  writ 
of  attachment  against  a  non-resident  debtor,  under  which  the 
officer'  is  required  to  seize  and  take  possession  of  the  debtor's 


368  PRIVATt)   INTERNATIONAL    LAW. 

property;  and  if  the  debtor  cannot  be  served  with  process,  he  is 
notified  by  pubHcation,  and  if  he  does  not  appear,  the  creditor,  on 
making  proper  proof,  is  entitled  to  a  judgment  by  default  for  his 
claim,  and  a  special  execution  is  issued  to  sell  the  property 
attached.  The  judgment  is  not  a  lien  upon  any  other  property 
than  that  attached ;  nor  can  any  other  be  taken  in  execution  to 
satisfy  it.  These  statutes  further  provide,  that  mortgages  on 
personal  property  have  no  validity  against  the  rights  and  niterests 
of  third  persons,  without  being  acknowledged  and  recorded, 
unless  the  property  l)e  delivered  to  and  remain  with  the  mort- 
gagee. 

And  so  strict  have  the  courts  of  Illinois  been  in  construing 
the  statute  concerning  chattel  mortgages,  that  they  have  held,  if 
the  m.ortgage  cannot  be  acknowledged  in  the  manner  required  by 
the  act,  there  is  no  way  of  making  it  effective,  except  to  deliver  the 
property,  and  that  even  actual  notice  of  the  mortgage  to  the 
creditor,  if  it  is  not  properly  recorded,  will  not  prevent  him  from 
attaching  and  holding  the  property  {Henderson  v.  Morgan,  26 
Illinois,  431  ;  Porter  v.  Dement,  35  Id.  479). 

The  policy  of  the  law  in  Illinois  will  not  permit  the  owner 
of  personal  property  to  sell  it  and  still  continue  in  possession  of 
it.  If  between  the  parties,  without  delivery,  the  sale  is  valid,  it 
has  no  effect  on  third  persons  who,  in  good  faith,  get  a  lien  on  it; 
for  an  attaching  creditor  stands  in  the  light  of  a  purchaser,  and 
as  such  will  be  protected  {Thornton  v.  Davenport,  i  Scammon, 
296;  Straivn  v.  Jones,  16  Illinois,  117.)  But  it  is  unnecessary  to 
cite  any  other  judicial  decisions  of  that  State  but  the  cases  of 
-Martin  v.  Dryden  (i  Gilm.an.  187),  and  Bimiell  v.  Robertson  (5 
Id.  282),  which  are  admitted  in  the  record  to  be  a  true  exposition 
of  the  laws  of  Illinois  on  the  subject,  to  establish  that  there  the 
safes  were  subject  to  the  process  of  attachment,  and  that  the  pro- 
ceedings in  attachment  took  precedence  of  the  prior  unrecorded 
mortgage  from  Bates. 

If  Green,  at  the  date  of  the  levy  of  his  attachment,  did  not 
know  of  this  mortgage,  and  subsequently  perfected  his  attachment 
by  judgment,  execution,  and  sale,  the  attachment  held  the  prop- 
erty, although  at  the  date  of  the  levy  of  the  execution  he  did 
know  of  it.  The  lien  he  acquired,  as  a  bona  fide  creditor,  when 
he  levied  his  attachment  without  notice  of  the  mortgage,  he  had 
the  right  to  perfect  and  secure  to  himself,  notwithstanding  the 
fact  that  the  mortgage  existed,  was  krown  to  him,  before  the 
judicial  proceedings  were  completed.     This  doctrine  has  received 


PERSONAL  PROPERTY  AND  RKAI,  PROPERTY.  369 

the  sanction  of  the  highest  court  in  Illinois  throngh  a  long  series 
of  decisions,  and' may  well  be  considered  the  settled  policy  of  the 
State  on  the  subject  of  the  transfer  of  personal  property.  If  so, 
the  effect  which  the  courts  there  would  give  to  these  proceedings 
in  attachment,  is  too  plain  for  controversy.  It  is  clear,  if  Van 
Buskirk  had  selected  Illinois,  instead  of  New  York,  to  test  the 
liability  of  these  safes  to  seizure  and  condemnation,  on  the  same 
evidence  and  pleadings,  their  seizure  and  condemnation  would 
have  been  justified. 

It  is  true,  the  court  in  Illinois  did  not  undertake  to  settle  in 
the  attachment  suit  the  title  to  the  property,  for  that  question  was 
not  involved  in  it,  but  when  the  true  state  of  the  property  was 
shown  by  other  evidence,  as  was  done  in  this  suit,  then  it  was 
obvious  that  by  the  laws  of  Illinois  it  could  be  seized  in  attach- 
ment as  Bate's  property. 

In  order  to  give  due  force  and  effect  to  a  judicial  proceeding, 
it  is  often  necessary  to  show  by  evidence,  outside  of  the  record, 
the  predicament  of  the  property  on  which  it  operated.  This  was 
done  in  this  case,  and  determined  the  effect  the  attachment  pro- 
ceedings in  Illinois  produced  on  the  safes,  which  effect  was  denied 
to  them  by  the  Supreme  Court  of  New  York. 

At  an  early  day  in  the  history  of  this  court,  the  act  of  Con- 
gress of  1790,  which  was  passed  in  execution  of  an  express  power 
conferred  by  the  Constitution,  received  an  interpretation  which 
has  never  been  departed  from  (Mills  v.  Diiryee,  i  Cranch,  481} 
and  obtained  its  latest  exposition  in  the  case  of  Christmas  v. 
Russell  (5  Wallace,  290"). 

The  act  declares  that  the  record  of  a  judgment  (authenti- 
cated in  a  particular  manner),  shall  have  the  same  faith  and 
credit  as  it  has  in  the  State  court  from  whence  it  is  taken.  And 
this  court  say :  "Congress  have  therefore  declared  the  effect  of  the 
record,  by  declaring  what  faith  and  credit  shall  be  given  to  it ;" 
and  that  "it  is  only  necessary  to  inquire  in  every  case  what  is  the 
effect  of  a  judgment  in  the  State  where  it  is  rendered." 

It  should  be  borne  in  mind  in  the  discussion  of  this  case,  that 
the  record  in  the  attachment  suit  was  not  used  as  the  foundation 
of  an  action,  but  for  purposes  of  defence.  Of  course  Green  could 
not  sue  Bates  on  it,  because  the  court  had  no  jurisdiction  of  his 
person ;  nor  could  it  operate  on  any  other  property  belonging  to 
Bates  than  that  which  was  attached.  But,  as  by  the  law  of  Illi- 
nois, Bates  was  the  owner  of  the  iron  safes  when  the  writ  of 
attachment  was  levied,  and  as  Green  could  and  did  lawfully  attach 

24 


370  PRIVATE     INTERNATIONAL    LAW. 

them  to  satisfy  his  debt  in  a  court  which  had  jurisdiction  to  render 
the  judgment,  and  as  the  safes  were  lawfully  sold  to  satisfy  that 
judgment,  it  follows  that  when  thus  sold  the  right  of  property 
in  them  was  changed,  and  the  title  to  them  became  vested  in  the 
purchasers  at  the  sale.  And  as  to  the  etTect  of  the  levy,  judgment 
and  sale  is  to  protect  Green  if  sued  in  the  courts  of  Illinois,  and 
these  proceedings  are  produced  for  his  own  justification,  it  ought 
to  require  no  argument  to  show  that  when  sued  in  the  court  of 
another  State  for  the  same  transaction,  and  he  justifies  in  the 
same  manner,  that  he  is  also  protected.  Any  other  rule  would 
destroy  all  safety  in  derivative  titles,  and  deny  to  a  State  the 
power  to  regulate  the  transfer  of  personal  property  within  its 
limits  and  to  subject  such  property  to  legal  proceedings. 

Attachment  laws,  to  use  the  words  of  Chancellor  Kent,  "are 
legal  modes  of  acquiring  title  to  property  by  operation  of  law." 
They  exist  in  every  State  for  the  furtherance  of  justice,  with  more 
or  less  liberality  to  creditors.  And  if  the  title  acquired  under  the 
attachment  laws  of  a  State,  and  which  is  valid  there,  is  not  to  be 
held  valid  in  every  other  State,  it  were  better  that  those  laws  were 
abolished,  for  they  would  prove  to  be  a  snare  and  a  delusion  to  the 
creditor. 

The  Vice-Chancellor  of  New  York,  in  Cochran  v.  Fitch  (i 
Sandford  Ch.  146)  when  discussing  the  effect  of  certain  attach- 
ment proceedings  in  the  State  of  Connecticut,  says :  "As  there 
was  no  fraud  shown,  and  the  court  in  Connecticut  had  undoubted 
jurisdiction  in  rem  against  the  complainant,  it  follows  that  I  am 
bound  in  this  State  to  give  to  the  proceedings  of  that  court  the 
same  faith  and  credit  they  would  have  in  Connecticut."  As  some 
of  the  judges  of  New  York  had  spoken  of  these  proceedmgs  in 
another  State,  without  service  of  process  or  appearance,  as  being 
nullities  in  that  state  and  void,  the   same  vice-chancellor  says : 

\  "But  these  expressions  are  all  to  be  referred  to  the  cases  then 
under  consideration,  and  it  will  be  found  that  all  those  were  suits 
brought  upon  the  foreign  judgment  as  a  debt,  to  enforce  it  against 
the  person  of  the  debtor,  in  which  it  was  attempted  to  set  up  the 
judgment  as  one  binding  on  the  person." 

The  distinction  between  the  effect  of  proceedings  by  foreign 

'  attachments,  when  ofitered  in  evidence  as  the  ground  of  recovery 
against  the  person  of  the  debtor,  and  their  effect  when  used  in 
defence  to  justify  the  conduct  of  the  attaching  creditor,  is  man- 
ifest and  supported  by  authority  (Cochran  v.  Fitch,  i  Sandford, 
Ch.  146;  Kane  v.  Cook,  8  California,  449).  Chief  Justice  Parker, 
in  Hall  v.  ll'illianis  (6  Pickering  232)  speaking  of  the  force  and 


PERSONAL  PROrEkTY  AND  REAL  PROPERTY.  371 

effect  of  judgments  recovered  in  other  States,  says:  "Such 
a  judgment  is  to  conclude  as  to  ever3-ihing  over  which  the  court 
which  rendered  it  had  juri:idiction.  If  the  property  of  the  citizen 
of  another  State,  within  its  lawful  jurisdiction,  is  condemned  by 
lawful  process  there,  the  decree  is  final  and  conclusive." 

It  would  seem  to  be  unnecessary  to  continue  this  investigation* 
further,  but  our  great  respect  for  the  learned  court  that  pro-^ 
nounced  the  judgment  in  this  case,  induces  us  to  notice  the  ground 
on  which  they  rested  their  decision.  It  is,  that  the  law  of  the 
State  of  New  York  is  to  govern  this  transaction,  and  not  the  law 
of  the  State  of  Illinois  where  the  property  was  situated ;  and  as, 
by  the  law  of  New  York,  Bates  had  no  property  in  the  safes  at  the 
date  of  the  levy  of  the  writ  of  attachment,  therefore  none  could 
be  acquired  by  the  attachment.  The  theory  of  the  case  is,  that 
the  voluntary  transfer  of  personal  property  is  to  be  governed 
everywhere  by  the  law  of  the  owner's  domicile,  and  this  theory 
proceeds  on  the  fiction  of  law  that  the  domicile  of  the  owner 
draws  to  it  the  personal  estate  wdiich  he  owns  wherever  it  may 
happen  to  be  located.  But  this  fiction  is  by  no  means  of  univer- 
sal application,  and  as  Judge  Story  says,  "yields  whenever  it  is 
necessary  for  the  purposes  of  justice  that  the  actual  situs  of 
the  thing  should  be  examined."  It  has  yielded  in  New  York  on 
the  power  of  the  State  to  tax  the  personal  property  of  one  of  her 
citizens,  situated  in  a  sister  State  {The  People  ex.  rel.  Hoyt  v.  The 
Commissioner  of  Taxes,  23  New  York,  225),  and  always  yields  to 
■'laws  for  attaching  the  estate  of  non-residents,  because  such  laws 
necessarily  assume  that  property  has  a  situs  entirely  distinct  from 
the  owner's  domicile."  If  New  York  cannot  compel  the  personal \\ 
property  of  Bates  (one  of  her  citizens)  in  Chicago  to  contribute  |\ 
to  the  expenses  of  her  government,  and  if  l^ates  had  the  legal  j  / 
right  to  own  such  property  there,  and  was  protected  in  its  owner- 
ship by  the  laws  of  the  State ;  and  as  the  power  to  protect  implies 
the  right  to  regulate,  it  would  seem  to  follow  that  the  dominion  of 
Illinois  over  the  property  was  complete,  and  her  right  perfect  to 
regulate  its  transfer  and  sul)ject  it  to  process  and  execution  in  her 
own  way  and  by  her  own  laws. 

We  do  not  propose  to  discuss  the  question  how  far  the  trans- 
fer of  personal  property  lawful  in  the  owner's  domicile  will  be  / 
respected  in  the  courts  of  the  country  where  the  property  is 
located  and  a  different  rule  of  transfer  prevails.  It  is  a  ve.xed 
question,  on  which  learned  courts  have  differed ;  but  after  all 
there  is  no  absolute  right  to  have  such  transfer  respected,  and  it  is 


372  PRIVATE    INTERNATIONAL    LAW. 

only  on  a  principle  of  comity  that  it  is  ever  allowed.     And  this  \  I 
principle  of  comity  always  yields  when  the  laws  and  policy  of  the 
State  where  the  propert}  is  located  has  prescribed  a  different  rule 
of  transfer  with  that  of  the  State  where  the  owner  lives. 

We  have  been  referred  to  the  case  of  Giiillander  v.  Hozuell 
(35  New  York  Reports,  657),  recently  decided  by  the  Court  of 
Appeals  of  New  York,  and  as  we  understand  the  decision  in  that 
case,  it  harmonizes  with  the  views  presented  in  this  opinion.  A 
citizen  of  New  York  owning  personal  property  in  New  Jersey 
made  an  assignment,  with  preferences  to  creditors,  which  was 
valid  in  New  York  but  void  in  New  Jersey.  Certain  creditors  in 
New  Jersey  seized  the  property  there  under  her  foreign  attachment 
laws  and  sold  it,  and  the  Court  of  Appeals  recognized  the  validity 
of  the  attachment  proceeding,  and  disregarded  the  sale  in  New 
York.  That  case  and  the  one  at  bar  are  alike  in  all  respects 
except  that  the  attaching  creditor  there  was  a  citizen  of  the  State 
in  which  he  applied  for  the  benefit  of  the  attachment  laws,  while 
Green,  the  plaintiff  in  error,  was  a  citizen  of  New  York ;  and  it  is 
insisted  that  this  point  of  difference  is  a  material  element  to  be 
considered  by  the  court  in  determining  this  controversy,  for  the 
reason  that  the  parties  to  this  suit,  as  citizens  of  New  York,  were 
bound  by  its  laws.  Rut  the  right  under  the  Constitution  of  the 
United  States  and  the  law  of  Congress  which  Green  invoked  to 
his  aid  is  not  at  all  affected  by  the  question  of  citizenship.  We 
cannot  see  why,  if  Illinois,  in  the  spirit  of  enlightened  legislation, 
concedes  to  the  citizens  of  other  States  equal  privileges  with  her 
own  in  her  foreign  attachment  laws,  that  the  judgment  agamst 
the  personal  estate  located  in  her  limits  of  a  non-resident  debtor, 
which  a  citizen  of  New  York  lawfully  obtained  there,  should  have 
a  different  effect  given  to  it  under  the  provisions  of  the  Constitu- 
tion and  the  law  of  Congress,  because  the  debtor,  against  whose 
property  it  was  recovered,  happened  also  to  be  a  citizen  of  New 
York. 

The  judgment  of  the  Supreme  Court  of  the  State  of  New 
York  is  reversed^  and  the  cause  remitted  to  that  court  with 
instructions  to  enter 

Judgment  for  the  plaintiff  in  error. 

BARNETT  v.  KINNEY,  1893. 

[147  U.  S.  476.] 

This  was  an  action  of  replevm  commenced  in  the  District 
Court  of  Alturas  County,  Territory  of  Idaho,  on  December  12, 


PERSONAI,    PROPERTV    AND    REAL    PROPERTY.  373 

1887,  by  Josiah  Barnett  against  P.  H.  Kinney  to  recover  the  pos- 
session of  certain  goods  and  chattels  mentioned  in  the  complaint 
and  for  damages  and  costs.  The  case  was  submitted  to  the  court 
for  trial,  a  jury  having  been  expressly  waived,  upon  an  agreed 
statement  of  facts,  and  the  court  made  its  findings  of  fact  as  fol- 
lows:  That  on  November  23,  1887,  M.  H.  Lipman  was  a  citizen 
of  the  United  States  and  of  the  Territory  of  Utah,  residing 
and  doing  business  at  Salt  Lake  City,  and  was  possessed  and 
the  owner  of  real  and  personal  property  in  Utah,  and  of  certain 
personal  property  at  Hailey,  in  Alturas  County,  Idaho ;  and  that 
he  was  indebted  to  divers  persons,  (none  of  whom  were  then, 
or  at  the  time  of  trial,  citizens,  residents  and  inhabitants  of 
Idaho),  and  was  insolvent,  and  on  that  day  duly  made,  executed 
and  delivered  to  Barnclt,  as  his  assignee,  a  deed  of  assign- 
ment in  writing,  which  was  accepted  by  Barnett,  who  assumed  the 
execution  thereof ;  that  by  the  assignment,  Lipman  sold,  trans- 
ferred, assigned  and  delivered  to  Barnett  all  his  property,  real 
and  personal,  wherever  found,  in  trust,  to  take  possession  and  con- 
vert the  same  into  cash,  and  pay  the  necessary  expenses,  and  then 
his  creditors,  according  to  certain  classes  named  in  the  assign- 
ment, preferences  being  made  therebv  in  favor  of  certain  credi- 
tors, as  against  others,  all  being  designated  by  classes ;  that  on 
November  25,  1887,  Barnett,  as  assignee,  took  actual  possession  of 
the  personal  property  situated  in  Idaho,  and  on  November  26, 
and  before  the  property  was  taken  by  Kinney,  filed  the  assign- 
ment for  record  in  the  proper  office  in  Alturas  County ;  and  that 
Kinnev  had  actual  knowledge  and  notice  in  these  premises.  It 
was  further  found  that  the  assignment  "was  and  is  valid  by  the 
laws  of  the  Territory  of  Utah ;"  that  Lipman  was  indebted  to  the 
St.  Paul  Knitting  Works,  a  corporation  organized  and  existing 
under  the  laws  of  the  State  of  Minnesota,  the  liability  having 
been  incurred  by  him  as  a  citizen,  resident  and  inhabitant  of 
Utal  and  in  the  transaction  of  his  business  there ;  that  on  Novem- 
ber 26,  1887,  and  while  Barnett  was  in  actual  possession,  Kinnev, 
who  was  sheriff  of  Alturas  County,  under  a  writ  of  attachment  in 
favor  of  that  corporation  and  against  Lipman,  took  possession  of 
the  property ;  and  that  thereupon  this  action  of  replevin  was  com- 
menced and  the  possession  of  the  property  delivered  to  Barnett, 
who  had  sold  the  same  and  retained  the  proceeds  subject  to  the 
final  disposition  of  the  action.  It  was  further  found  that  prior 
to  the  taking  of  the  property  from  Barnett  by  Kinney  under 
the  writ  of  attachment  and  after  the   assignment  had  been    re- 


371  PRIVATE    INTERNATIONAL    LAW. 

corded,  Kinney,  as  sheriff,  had  taken  it  from  Barnett's  possession 
under  a  writ  of  attachment  issued  at  the  suit  of  a  firm  located 
in  Nebraska  against  Lipman,  and  it  had  been  retaken  from  Kin- 
ney in  an  action  of  claim  and  delivery  brought  by  Barnett  against 
him,  which  action  was  still  pending.  It  was  also  found  that  the 
goods  had  been  shipped  from  Lipman's  store  in  Utah  in  Sep- 
tember, 18S7,  to  Alturas  County,  and  that  Lipman  from  Septem- 
ber, 1887,  up  to  the  time  of  making  the  assignment,  had  been 
doing  business  in  Idaho  in  the  running  of  a  branch  store  at 
Hailey,  in  Alturas  County ;  and  that  at  the  time  of  bringing  this 
action  defendant  was  wrongfully  detaining  the  property  from  the 
possession  of  plaintiff. 

The  court  found  as  conclusions  of  law  that  the  assignment,  a 
copy  of  which  was  annexed  to  the  finding  of  facts,  was  a  good 
and  valid  instrument,  and  conveyed  title  to  the  property  in  ques- 
tion and  that  the  plaintiff  at  the  time  of  bringing  the  action 
and  the  trial  was  entitled  to  the  possession  of  the  property,  and 
to  judgment  therefor,  and  for  nominal  damages  and  costs. 
Judgment  having  been  entered,  an  appeal  was  prosecuted  to  the 
Supreme  Court  of  the  Territory,  by  which  it  was  reversed,  and 
the  cause  remanded  to  the  District  Court  with  instructions  to 
enter  judgment  for  the  defendant.  The  record  shows  that  the 
case  had  been  tried  in  the  District  Court  before  the  then  Chief 
Justice  of  the  Territory,  and  that  a  change  had  taken  place  in 
that  office  when  the  hearing  was  had  on  appeal.  Of  the  three 
members  composing  the  Supreme  Court,  one  was  for  reversal  and 
another  for  affirmance,  while  the  Chief  Justice  had  been  of  coun- 
sel between  the  same  parties  in  a  case  in  the  same  District  Court, 
but  "with  a  different  attaching  creditor,"  and  he  stated  that  he 
had  not  participated  in  the  discussion  of  the  case,  but,  his  asso- 
ciates having  reached  opposite  conclusions,  the  disagreeable  duty 
rested  upon  him  of  "breaking  the  dead-lock,"  which  he  did  by 
concuring  in  the  opinion  for  reversal.  The  majority  opinion  is 
to  be  found  in  23  Pac.  Rep.  922,  and  the  dissent  in  24  Pac.  Rep. 
624.    The  case  was  brought  by  appeal  to  this  court. 

Mr.  Chief  Justice  Fuller,  after  stating  the  case,  delivered  the 
opinion  of  the  court. 

The  Supreme  Court  of  the  Territory  held  that  a  non-resident 
could  not  make  an  assignment,  with  preferences,  of  personal 
property  situated  in  Idaho,  that  would  be  valid  as  against  a  non- 


PERSONAL  PROPERTY  AND  REAL  PROPERTY.  375 

resident  attaching  creditor,  the  latter  being  entitled  to  the  same 
rights  as  a  citizen  of  Idaho;  that  tlie  recognition  by  one  State 
of  the  laws  of  another  State  governing  the  transfer  of  property 
rested  on  the  principle  of  comity,  which  always  yielded  when  the 
policy  of  the  State  where  the  property  was  located  had  prescribed 
a  different  rule  of  transfer  from  that  of  the  domicil  of  the  owner ; 
that  this  assignment  was  contrary  to  the  statutes  and  the  settled 
policy  of  Idaho,  in  that  it  provided  for  preferences ;  that  the  fact 
that  the  assignee  had  taken  and  was  in  possession  of  the  property 
could  not  affect  the  result ;  and  that  the  distinction  between  a 
voluntary  and  an  involuntary  assignment  was  entitled  to  no  con- 
sideration. 

Undoubtedly  there  is  some  conflict  of  authority  on  the  ques- 
tion as  to  how  far  the  transfer  of  personal  property  by  assign- 
ment or  sale,  lawfully  made  in  the  country  of  the  domicil  of  the 
owner,  will  be  held  to  be  valid  m  the  court  of  another  country, 
where  the  property  is  situated  and  a  different  local  rule  prevails. 

We  had  occasion  to  consider  this  subject  somewhat  in  Cole 
V.  Cumiingharn,  133  U.  S.  107,  129,  and  it  was  there  said:  "Great 
contrariety  of  state  decision  exists  upon  this  general  topic,  and 
it  may  be  fairly  stated  that,  as  between  citizens  of  the  state  of 
the  forum,  and  the  assignee  appointed  under  the  laws  of  another 
state,  the  claim  of  the  former  will  be  held  superior  to  that  of  the 
latter  by  the  courts  of  the  former ;  while,  as  between  the  assignee 
and  citizens  of  his  own  state  and  the  state  of  the  debtor,  the 
laws  of  such  state  will  ordinarily  be  applied  in  the  state  of  the 
litigation,  unless  forbidden  by,  or  inconsistent  with,  the  laws  of 
policy  of  the  latter.  Again,  although,  in  some  of  the  states,  the 
fact  that  the  assignee  claims  under  a  decree  of  a  court  or  by  virtue 
of  the  law  of  the  state  of  the  domicil  of  the  debtor  and  the  attach- 
ing creditor,  and  not  under  a  conveyance  by  ^he  insolvent,  is  re- 
garded as  immaterial,  yet,  in  most,  the  distinction  between  invol- 
untary transfers  of  property,  such  as  work  by  operation  of  law, 
as  foreign  bankrupt  and  insolvent  laws,  and  a  voluntary  con- 
veyance, is  recognized.  The  reason  for  the  distinction  is  that  a 
voluntary  transfer,  if  valid  where  made,  ought  generally  to  be 
valid  everywhere,  being  the  exercise  of  the  personal  right  of  the 
owner  to  dispose  of  his  own,  while  an  assigniiie)it  by  operation 
of  latv  has  no  legal  operation  out  of  the  state  in  which  the  law 
was  passed.  This  is  a  reason  which  applies  to  citizens  of  the 
actual  sitns  of  the  property  when  that  is  elsewhere  than  at  the 
domicil  of  the  insolvent,  and  the  controversy  has  chiefly  been  as 


376  PRIVATE    INTERNATIONAL    LAW. 

to  whether  property  so  situated  can  pass  even  by  a  voluntary  con- 
veyance." 

We  have  here  a  voluntary  transfer  of  his  property  by  a  citi- 
zen of  Utah  for  the  payment  of  his  debts,  with  preferences,  which 
transfer  was  valid  in  Utah,  where  made,  and  was  consummated 
by  the  delivery  of  the  property  in  Idaho,  where  it  was  situated, 
and  then  taken  on  an  attachment  in  favor  of  a  creditor  not  a 
resident  or  citizen  of  Idaho.  Was  there  anything  in  the  statutes 
or  established  policy  of  Idaho  invalidating  such  transfer? 

Title  XII  of  Part  Second  of  the  Revised  Statutes  of  the  Ter- 
ritory of  Idaho,  entitled  "Of  proceedings  in  insolvency,"  (Rev. 
Stats.  Idaho,  §§  5875  to  5932,)  provided  that  "no  assignment  of 
any  insolvent  debtor,  otherwise  than  as  provided  in  this  title,  is 
legal  or  binding  on  creditors ;"  that  creditors  should  share  pro 
rata,  "without  priority  or  preference  whatever ;"  for  the  discharge 
of  the  insolvent  debtor  upon  compliance  with  the  provisions  of 
the  title,  by  application  for  such  discharge  by  petition  to  the  Dis- 
trict Court  of  the  county  in  which  he  had  resided  for  six  months 
next  preceding,  with  schedule  and  inventory  annexed,  giving  a 
true  statement  of  debts  and  liabilities  and  a  description  of  all  the 
insolvent's  estate,  including  his  homestead,  if  any,  and  all  prop- 
erty exempt  by  law  from  execution.  The  act  applied  to  corpora- 
tions and  partnerships,  and  declared  that  if  the  partners  resided 
in  different  counties,  that  couri  in  which  the  petition  was  first  filed 
should  retain  jurisdiction  over  the  case.  Nothing  is  clearer  from 
its  various  provisions  than  that  the  statute  had  reference  only  to 
domestic  insolvents.  As  pointed  out  by  Judge  Berry  in  his  dis- 
senting opinion,  the  first  section  of  the  fifty-eight  upon  this  sub- 
ject, in  providing  that  "every  msolvent  debtor  may,  upon  com- 
pliance with  the  provisions  of  this  title,  be  discharged  from  his 
debts  and  liabilities,"  demonstrates  this.  The  legislature  of  Idaho 
certainly  did  not  attempt  to  discharge  citizens  of  other  jurisdic- 
tions from  their  liabilities,  nor  intend  that  personal  property  in 
Idaho,  belonging  to  citizens  of  other  States  or  Territories,  could 
not  be  applied  to  the  payment  of  their  debts  unless  they  acquired 
a  six  months'  residence  in  some  county  of  Idaho,  and  went  through 
its  insolvency  court. 

The  instrument  in  controversy  did  not  purport  to  be  exe- 
cuted under  any  statute,  but  was  an  ordinary  common  law  assign- 
ment with  preferences,  and  as  such  was  not,  in  itself,  illegal. 
Jcivell  V.  Knight,  123  U.  S.  426,  434.  And  it  was  found  as  a  fact 
that  it  was  valid  under  the  laws  of  Utah.    While  the  statute  of 


PERSONAL  PROPERTY  AND  REAL  PROPERTY.  377 

Idaho  prescribed  pro  rata,  distribution  without  preference,  in 
assignments  under  the  statute,  it  did  not  otherwise  deal  with  the 
disposition  of  his  property  by  a  debtor  nor  prohibit  preferences 
between  non-resident  debtors  and  crecHtors  through  an  assign- 
ment vaHd  by  the  laws  of  the  debtor's  domicil.  No  just  rule 
required  the  courts  of  Idaho,  at  the  instance  of  a  citizen  of  an- 
other state,  to  adjudge  a  transfer,  valid  at  common  law  and  by 
the  law  of  the  place  where  it  was  made,  to  be  invalid,  because 
preferring  creditors  elsewhere,  and,  therefore,  in  contravention 
of  the  Idaho  statute  and  the  public  policy  therein  indicated  in 
respect  of  its  own  citizens,  proceeding  thereunder.  The  law  of 
the  situs  was  not  incompatible  with  the  law  of  the  domicil. 

In  Halsted  v.  Strauss,  32  Fed.  Rep.  279,  280,  which  was  an 
action  in  New  Jersey  involving  an  attachment  there  by  a  New 
York  creditor  as  agams^  the  vohmtary  assignee  of  a  New  York 
firm,  the  property  in  dispute  being  an  indebtedness  of  one  Strauss, 
a  resident  of  New  Jersey,  to  the  firm,  Mr.  Justice  Bradley  re- 
marked: "It  is  true  that  the  statute  of  New  Jersey  declares  that 
assignments  in  trust  for  the  benefit  of  creditors  shall  be  for  their 
equal  benefit,  in  proportion  to  their  several  demands,  and  that 
all  preferences  shall  be  deemed  fraudulent  and  void.  ( But  this 
law  applies  only  to  New  Jersey  assignments,  and  not  to  those  made 
in  other  States,  which  affect  property  or  creditors  in  New  Jersey.) 
It  has  been  distinctly  held  by  the  courts  of  New  Jersey  that  a 
voluntary  assignment  made  by  a  non-resident  debtor,  wdiich  is 
valid  by  the  law  of  the  place  where  made,  cannot  be  impeached 
in  New  Jersey,  with  regard  to  property  situated  there,  by  non- 
resident debtors.  Bcntlcy  v.  IVhittciiwre,  4  C.  E.  Green,  (19  N. 
J.  Eq.)  462:  Moore  v.  Bonnell,  2  Vroom  (31  N.  J.  Law,)  90. 
The  execution  of  foreign  assignments  in  New  Jersey  will  be 
enforced  by  its  courts  as  a  matter  of  comity,  except  when  it  would 
injure  its  own  citizens;  then  it  will  not.  If  Deering,  ^lilliken  & 
Co.  were  a  New  Jersey  firm  they  could  successfully  resist  the  exe- 
cution of  the  assignment  in  this  case.  But  they  are  not ;  they  are 
a  New  York  firm.  New  York  is  their  business  residence  and 
domicil.  The  mere  fact  that  one  of  the  partners  resides  in  New 
Jersey  cannot  alter  the  case.  The  New  Jersey  courts  in  carrying 
out  the  policy  of  its  statutes  for  the  protection  of  its  citizens,  by 
refusing  to  carry  into  effect  a  valid  foreign  assignment,  will  be 
governed  by  reasonable  rules  of  general  jurisprudence ;  and  it 
seems  to  me  that  to  refuse  validity  to  the  assignment  in  the  present 
case  would  be  unreasonable  and  uncalled  for." 


37S  PRIVATE    INTERNATIONAL    LAW. 

In  May  v.  First  National  Bank,  122  Illinois,  551,  556,  the 
Supreme  Court  of  Illinois  held  that  the  provision  in  the  statute 
of  that  State  prohibiting  all  preferences  in  assignments  by  debtors 
applied  only  to  those  made  in  the  State,  and  not  to  those  made 
in  other  States ;  that  the  statute  concerned  only  domestic  assign- 
ments and  domestic  creditors;  and  the  court,  in  reference  to  the 
contention  that,  if  not  against  the  terms,  the  assignment  was 
against  the  policy  of  the  statute,  said:  "An  assignment  giving 
preference,  though  made  without  the  State,  might,  as  against 
creditors  residing  in  this  State,  with  some  reason,  be  claimed  to 
be  invalid,  as  being  against  the  policy  of  the  statute  in  respect 
of  domestic  creditors — that  it  was  the  policy  of  the  law  that  there 
should  be  an  equal  distribution  in  respect  to  them.  But  as  the 
statute  has  no  application  to  assignments,  made  without  the  State, 
we  cannot  see  that  there  is  any  policy  of  the  law  which  can  be 
said  to  exist  with  respect  to  such  assignments,  or  with  respect  to 
foreign  creditors,  and  why  non-residents  are  not  left  free  to 
execute  voluntary  assignments,  with  or  without  preferences, 
among  foreign  creditors,  as  they  may  see  fit,  so  long  as  domestic 
creditors  are  not  affected  thereby,  without  objection  lying  to  such 
assignments  that  they  are  against  the  policy  of  our  law.  The 
statute  was  not  made  for  the  regulation  of  foreign  assignments, 
or  for  the  distribution,  under  such  assignments,  of  a  debtor's 
property  among  foreign  creditors." 

In  Frank  v.  Bohhitt,  155  Mass.  112,  a  voluntary  assignment 
made  in  North  Caroliiia  and  valid  there,  was  held  valid  and 
enforced  in  Massachusetts  as  against  a  subsequent  attaching 
creditor  of  the  assignors,  resident  in  still  another  State,  and  not 
a  part  to  the  assignment.  The  Supreme  Judicial  Court  observed 
that  the  assignment  was  a  voluntary  and  not  a  statutory  one ;  that 
the  attaching  creditors  were  not  resident  in  Massachusetts  ;  that  at 
common  law  in  that  State  an  assignment  for  the  benefit  of 
creditors  which  created  preferences  was  not  void  for  that  reason ; 
and  that  there  was  no  statute  which  rendered  invalid  such  an 
assignment  when  made  by  parties  living  in  another  State,  and 
affecting  property  in  Massachusetts,  citing  Train  v.  Kendall,  137 
Mass.  366.  Referring  to  the  general  rule  that  a  contract,  valid 
by  the  law  of  the  place  where  m.ade,  would  be  regarded  as  valid 
elsewhere,  and  stating  that  "it  is  not  necessary  to  inquire  whether 
this  rule  rests  on  the  comity  which  prevails  between  different 
states  and  countries,  or  is  a  recognition  of  the  general  right 
which  everyone  has  to  dispose  of  his  property  or  to  contract  con- 


PERSONAL  PROPERTY  AND  REAL  PROPERTY.  379* 

cerning  it  as  he  chooses,"  the  court  said  that  the  only  qualification 
annexed  to  voluntary  assignments  made  by  debtors  living  in 
another  State  had  been  'that  this  court  would  not  sustain  them 
if  to  do  so  would  be  prejudicial  to  the  interests  of  our  own  citi- 
zens or  opposed  to  public  policy."  And  added:  "As  to  the 
claim  of  the  plaintiffs  that  they  should  stand  as  well  as  if  they 
were  citizens  of  this  State,  it  may  be  said,  in  the  first  place,  that 
the  qualification  attached  to  foreign  assignments  is  in  favor  of 
our  own  citizens  as  such,  and  in  the  next  place,  that  the  assign- 
ment being  valid  by  the  law  of  the  place  where  it  was  made,  and 
not  adverse  to  the  interests  of  our  citizens  nor  opposed  to  public 
policy,  no  cause  appears  for  pronouncing  it  invalid."  And  see, 
among  numerous  cases  to  the  same  effect,  Butler  v.  Wendell,  57 
Michigan,  62;  Receiver  v.  First  National  Bank,  7  Stewart,  (34. 
N.  J.  Eq.  450)  ;  Egbert  v.  Baker,  58  Connecticut,  319;  Chafee  v. 
Fourth  National  Bank  of  Neiv  York,  71  Maine,  514;  Ockerman 
V.  Cross,  54  N.  Y.  29;  W eider  v.  Maddox,  66  Texas,  372;  Thurs- 
ton V.  Rosenfield,  42  Missouri,  474. 

We  do  not  regard  our  decision  in  Green  v.  Van  Buskirk,  5 
Wall.  307;  7  Wall.  139,  as  to  the  contrary.  That  case  was  fully 
considered  in  Cole  v.  Cunningham,  supra,  and  need  not  be  reex- 
amined. The  controversy  was  between  two  creditors  of  the 
owner  of  personalty  in  Illinois,  one  of  them  having  obtained 
judgment  in  a  suit  in  which  the  property  was  attached  and  the 
other  claiming  under  a  chattel  m.ortgage.  By  the  Illinois  statute 
such  a  mortgage  was  void  as  against  third  persons,  unless 
acknowledged  and  recorded  as  provided,  or  unless  the  property 
was  delivered  to  and  remained  with  the  mortgagee,  and  the 
mortgage  in  that  case  was  not  acknowledged  and  recorded,  nor 
had  possession  been  taken.  All  parties  were  citizens  of  New 
York,  but  that  fact  was  not  considered  sufficient  to  overcome  the 
distinctively  politic  and  coercive  law  of  Illinois. 

In  our  judgment  the  Idaho  statute  was  inapplicable  and  the 
assignment  was  in  contravention  of  no  settled  policy  of  that 
Territory.  It  was  valid  at  common  law,  and  valid  in  Utah,  and 
the  assignee  having  taken  possession  before  the  attachment  issued, 
the  District  Court  was  right  in  the  conclusions  of  law  at  which  it 
arrived. 

The  judgment  is  reversed  and  the  cause  remanded  to  the 
Supreme  Court  of  the  State  of  Idaho  for  further  proceedings  not 
inconsistent  with  this  opinion. 

Judgment  reversed. 


380  PRIVATE    INTERNATIONAL    LAW. 

HERVEY  V.  LOCOMOTIVE  WORKS,  1876. 
[93  U.  S.  664.] 

Error  to  the  Circuit  Court  of  the  United  States  for  the  South- 
ern District  of  IlHnois. 

On  the  twenty-first  day  of  August,  187 1,  the  Rhode  Island 
Locomotive  Works  entered  into  a  contract  with  J.  Edwin  Conant 
&  Co.,  as  follows : — 

"This  agreement  made  this  twenty-first  day  of  August,  1871, 
by  and  between  the  Rhode  Island  Locomotive  Workg  of  Provi- 
dence, R.  I.,  party  of  the  first  part,  and  J.  Edwin  Conant  &  Co., 
contractors  for  the  Chicago  &  Illinois  Southern  Railroad  Co.,  party 
of  the  second  part,  witnesseth : 

"That  whereas  the  said  party  of  the  first  part  is  the  owner  of 
one  locomotive-engine  and  tender  complete,  named  Alfred  N. 
Smyser,  No.  3 ;  and  whereas  the  said  party  of  the  second  part  is 
desirous  of  using  and  eventually  purchasing  the  same :  now,  there- 
fore, in  consideration  of  the  sum  of  one  dollar  to  the  said  party  of 
the  first  part  by  the  said  party  of  the  second  part  in  hand  paid,  the 
receipt  whereof  is  hereby  acknowledged,  and  in  consideration  of 
the  covenants  and  agreements  hereinafter  contained,  the  said  party 
of  the  first  part  agrees  to  let  and  lease,  and  hereby  does  let  and 
lease,  to  the  said  party  of  the  second  part,  and  the  said  party  of 
the  second  part  agrees  to  have  and  take  from  the  said  party  of  the 
first  part,  the  said  one  locomotive-engine  and  tender,  with  the  right 
to  place  the  same  upon  its  railroad,  and  to  use  the  same  in  the  usual 
manner  in  transacting  the  business  of  the  said  railroad ;  and  in 
consideration  thereof  the  said  party  of  the  second  part  hereby  cov- 
enants and  agrees  to  pay  to  the  said  party  of  the  first  part  for  the 
use  and  rent  of  the  same  the  sum  of  $12,093.96  in  notes,  as 
follows : — 

10%  cash ; $1,150.00 

One  note  due  Feb.  24,  1872 3,580.16 

One     "       "    May  24,  1872 3-647-90 

One     "       "    Aug.  24,1872 3-7i5-90 

$12,093.96 

"And  the  said  party  of  the  second  part  hereby  further  cove- 
nants and  agrees,  during  the  time  hereby  demised,  to  keep  and 
maintain  the  said  one  locomotive-engine  and  tender  in  as  good 


PERSONAL  PROPERTY  A\D  REAL  RROPERTY.  381 

condition  as  it  now  is,  reasonable  and  ordinary  wear  and  tear 
excepted;  but  it  is  understood  and  agreed,  that  any  injury  by 
collision,  by  running  off  the  track,  or  by  fire,  or  by  destruction  from 
any  cause,  is  not  to  be  considered  reasonable  and  ordinary  wear 
and  tear. 

"And  the  said  party  of  the  first  part,  in  consideration  of  the 
foregoing,  further  covenants  and  agrees,  that  in  case  said  party  of 
the  second  part  shall  pay  the  said  notes  promptly,  as  hereinbefore 
set  forth,  upon  payment  of  the  last-mentioned  note,  viz.,  $3,715.90^ 
and  all  renewals  of  same,  it  will  grant,  sell,  assign,  transfer,  and 
convey  to  the  said  party  of  the  second  part  the  said  one  locomo- 
tive-engine and  tender  in  the  condition  it  then  is,  to  have  and  to 
hold  the  same  to  the  said  party  of  the  second  part,  its  legal  repre- 
sentatives, successors,  and  assigns  forever.  And  the  said  party  of 
the  second  part  further  covenants  and  agrees,  that  if  it  shall  fail 
to  make  any  of  the  said  payments  when  due,  then  the  said  party 
of  the  first  part  shall  be  at  liberty,  and  it  shall  be  lawful  for  it,  to 
enter  upon  and  take  possession  of  the  said  one  locomotive-engine 
and  tender,  and  to  that  end  to  enter  upon  the  road  and  other 
property  of  said  party  of  the  second  part. 

"And  the  second  party  of  the  second  part  further  covenants 
and  agrees,  that,  in  case  of  any  default  on  its  part  in  any  of  the 
payments,  as  hereinbefore  provided,  it  will,  within  thirty  days 
thereafter,  deliver  the  said  one  locomotive-engine  and  tender  to  the 
said  party  of  the  first  part. 

"And  the  said  party  of  the  first  part  shall  thereafter,  upon 
thirty  days'  written  notice  to  the  said  party  of  the  second  part  of 
the  times  and  place  of  sale,  proceed  to  sell  the  one  locomotive- 
engine  and  tender,  and  shall  apply  the  proceeds  of  such  sales,  first, 
to  the  payment  of  the  expenses  of  the  sale ;  second,  to  the  payment 
of  any  balance  then  due,  or  thereafter  to  become  due,  for  or  on 
account  of  the  rent,  as  hereinbefore  provided  ;  and,  if  after  these 
payn-.ents  there  shall  remain  any  balance  of  the  proceeds  of  the 
sale,  the  same  shall  be  paid  to  the  said  party  of  the  second  part. 

"And  the  said  party  of  the  second  part  further  covenants 
agrees,  that  they  will  not  in  any  way  exercise  or  claim  the  right  to 
release,  incumber,  or  in  any  way  dispose  of  said  one  locomotive- 
engine  and  tender,  or  employ  them  during  the  term  of  this  lease  in 
any  other  way  than  in  the  service  of  J.  Edwin  Conant  &  Co..  con- 
tractors for  the  Chicago  &  Illinois  Southern  Railroad  Company, 
or  in  any  way  or  manner  interfere  with  the  said  party  of  the  first 
part  in  repossessing  and  retaking  said  one  locomotive-engine  and 


382  PRIVATE    INTERNATIONAL    LAW. 

tender,  should  default  be  made  in  any  of  the  hereinbefore  provided 
for  payments,  but  the  full  legal  right  and  title  of  said  one  locomo- 
tive-engine and  tender  shall  and  does  remain  in  the  Rhode  Island 
Locomotive  Works,  as  fully,  to  all  intents  and  purposes,  as  though 
the  lease  had  not  been  made. 

"And  the  said  party  of  the  first  part  hereby  covenants  and 
agrees,  that  if  the  said  party  of  the  second  part  shall  and  do  well 
.and  truly  make  each  of  the  payments  aforesaid  at  the  times  herein- 
before specified,  without  any  let  or  hindrance  or  delay  whatever  as 
to  any  or  either  of  said  payments,  that  upon  the  last-mentioned 
payment,  viz.,  $3,715.90,  and  all  renewals  being  made,  as  well  as 
■each  and  all  of  the  other  said  payments,  the  said  party  of  the  first 
part  will  and  shall  convey  the  said  one  locomotive-engine  and  ten- 
der to  the  said  party  of  the  second  part,  and  give  them  a  full 
.acquittance  for  the  same,  and  that  the  title  thereto  shall  ipso  facto, 
by  the  completion  of  such  payment,  vest  in  the  said  J.  Edwin  Co- 
nant  &  Co.,  contractors  for  the  Chicago  &  Illinois  Southern  Rail- 
joad  Company. 

"In  witness  whereof,  the  parties  hereto  have  hereunto  set  the 
corporate  seal,  by  the  respective  officers  duly  authorized. 

"Rhode  Island  Locomotive  Works. 

"Edw.  p.  Mason,  Treasurer.  )  seal    rhode    island 

"J.  Edwin  Conant  &  Co.,  V    locomotive  works. 

Contractors  C.  &  III.  So.  R.  R."  )     providence,  r,  i. 

Which  agreement  was  indorsed  as  follows : — 

^'State  of  Illinois,  Cumberland  County: 

"I  hereby  certify  that  the  within  instrument  was  filed  in  this 
office  for  record  on  the  twenty-eighth  day  of  January,  1873,  at 
two  o'clock  p.  m.,  and  duly  recorded  in  book  D  of  mortgages,  page 
485,  and  examined. 

"Andrew  Carson, 

"Clerk  and  Ex-Officio  Recorder." 

It  was  admitted  that  the  agreement  was  executed  at  its  place 
of  business,  in  Rhode  Island,  by  the  Rhode  Island  Locomotive 
Works,  and  in  New  York  by  Conant  &  Co.,  where  they  resided ; 
th?  Conant  &  Co.  paid  no  part  of  the  principal  of  the  purchase- 
money  except  the  amount  admitted  on  the  face  of  the  agreement ; 
and  that  they  obtained  possession  of  said  engine  and  its  tender 
under  said  agreement,  and  took  it  to  Illinois. 


PERSONAL  PROPERTY  AND  REAL  PROPERTY,  383 

On  the  28th  of  October,  1871,  by  virtue  of  a  writ  of  attach- 
ment issued  out  of  the  Court  of  Common  Picas  of  Coles  County, 
Illinois,  in  an  action  of  assumpsit  wherein  Conant  &  Co.  were 
defendants,  the  sheriff  seized  the  Smyser  as  their  property,  and 
sold  it  to  the  plaintiff  in  error,  Hervey. 

On  the  2yth  of  January,  1873,  the  marshal  of  the  United 
States  for  the  southern  district  of  Illinois  took  possession  of  the 
Smyser  under  a  writ  of  replevin  sued  out  of  the  Circuit  Court  of 
the  United  States  for  that  district  by  the  Rhode  Island  Locomotive 
Works  against  Hervey,  and  the  Paris  and  Decatur  Railroad  Com- 
pany. 

At  the  trial,  the  court  below  found  a  special  verdict  as  fol- 
lows : — 

That  the  lease  offered  in  evidence  by  plaintiff  was  a  subsisting 
executory  contract  between  the  parties  thereto. 

That  the  plaintiff  had  not  parted  with  the  legal  possession  of 
the  locomotive  in  controversy. 

That  the  plaintiff'  had  never  received  payment  for  the  loco- 
motive in  controversy  other  or  further  than  as  stated  in  the  face 
of  their  lease. 

That  the  plaintiff  delivered  to  Conant  &  Co.  the  said  locomo- 
tive to  be  used  by  them  in  Illinois,  and  that  said  locomotive  was 
so  used  in  that  State. 

That  the  possession  of  Conant  &  Co.  was  the  possession  of 
the  plaintiff. 

That  the  defendant  obtained  possession  of  the  locomotive  in 
controversy  in  due  form  of  law,  under  execution,  levy,  and  sale, 
in  pursuance  of  a  valid  judgment  obtained  in  a  court  of  competent 
jurisdiction,  after  due  service  upon  the  parties  thereto  in  a  suit 
against  Conant  &  Co. 

That  a  sale  under  said  execution  was,  by  an  officer  duly  au- 
thorized thereto,  made  to  the  defendant,  Robert  G.  Hervey,  and 
that  tnyment  was  made,  in  the  full  amount  bid  at  said  sale,  by  said 
Hervey  to  said  officer,  and  that  the  said  officer  delivered  the  said 
locomotive  to  said  Hervey. 

That,  subsecjuent  to  such  sale  and  delivery  by  said  officer  to 
said  Hervey,  plaintiffs  placed  upon  record,  in  the  proper  recorder's 
office  in  the  county  of  Coles,  in  the  State  of  Illinois,  where  the 
said  property  was  held,  the  said  lease,  in  the  chattel-mortgage 
records  in  said  county. 

That  said  recording  of  said  lease  was  more  than  one  vcar 
subsequent  to  the  sale  of  said  locomotive  under  said  execution  and 
levy. 


384  PRIVATE    INTERNATIONAL    LAW. 

That  said  sale  by  said  officer  to  said  Hervey  was  under  a 
special  execution,  as  shown  by  the  public  records  of  said  Coles 
County. 

Whereupon  the  court  found  for  the  plaintiff,  and  gave  judg- 
ment accordingly. 

Mr.  Justice  Davis  delivered  the  opinion  of  the  court. 

It  was  decided  by  this  court  in  Green  v.  Van  Biiskirk,  5  Wall. 
307,  7  id.  139,  that  the  liability  of  property  to  be  sold  under  legal 
process,  issuing  from  the  courts  of  the  State  where  it  is  situated, 
must  be  determined  by  the  law  there,   rather  than   that  of  the 
jurisdiction  where  the  owner  lives.     These  decisions  rest  on  the 
ground  that  every  State  has  the  right  to  regulate  the  transfer  of 
property  within  its  limits,  and  that  whoever  sends  property  to  it 
impliedly   submits   to   the   regulations  concerning  its   transfer   in 
force  there,  although  a  different  rule  of  transfer  prevails  in  the 
jurisdiction  where  he  resides.     He  has  no  absolute  right  to  have 
the  transfer  of  property,  lawful  in  that  jurisdiction,  respected  in 
the  courts  of  the  State  where  it  is  found,  and  it  is  only  on  a  prin- 
ciple of  comity  that  it  is  ever  allowed.     But  this  principle  yields 
when  the  laws  and  policy  of  the  latter  State  conflict  with  those  of 
the  former. 

The  policy  of  the  law  in  Illinois  will  not  permit  the  owner  of 
personal  property  to  sell  it,  either  absolutely  or  conditionally,  and 
still  continue  in  possession  of  it.  Possession  is  one  of  the  strongest 
evidences  of  title  to  this  class  of  property,  and  cannot  be  rightfully 
separated  from  the  title,  except  in  the  manner  pointed  out  by 
-statute.  The  courts  of  Illinois  say  that  to  suffer  without  notice 
to  the  world  the  real  ownership  to  be  in  one  person,  and  the  osten- 
sible ownership  in  another,  gives  a  false  credit  to  the  latter,  and 
in  this  way  works  an  injury  to  third  persons.  Accordingly,  the 
actual  owner  of  personal  property  creating  an  interest  in  another, 
to  whom  it  is  delivered,  if  desirous  of  preserving  a  lien  on  it,  must 
comply  with  the  provisions  of  the  Chattel-Mortgage  Act.  R.  S. 
111.  1874,  711,  712.  It  requires  that  the  instrument  of  conveyance, 
if  it  have  the  effect  to  preserve  a  mortgage  or  lien  on  the  property, 
must  be  recorded,  whether  the  party  to  it  be  a  resident  or  non- 
resident of  the  State.  If  this  be  not  done,  the  instrument,  so  far 
as  third  persons  are  concerned,  has  no  validity. 

Secret  liens  which  treat  the  vendor  of  personal  property,  who 
has  delivered  possession  of  it  to  the  purchaser,  as  the  owner  until 
the  payment  of  the  purchase-money,  cannot  be  maintained  in 
Illinois.    They  are  held  to  be  constructively  fraudulent  as  to  cred- 


PERSONAL  PROPERTY  AND  RKAL  PROPERTY.  385 

itors,  and  the  property,  so  far  as  their  rijjjhts  arc  concerned,  is 
considered  as  helonging  to  the  purchaser  hoUhng  the  possession. 
McCoruiick  v.  Hodden,  37  111.  370;  Kctchuiii  v.  Watson,  24  id. 
591.  Nor  is  the  transaction  changed  by  the  agreement  assuming 
the  form  of  a  lease.  In  determining  the  real  character  of  a  con- 
tract, courts  will  always  look  to  its  purpose,  rather  than  to  the 
name  given  to  it  by  the  parties.  If  that  purpose  be  to  give  the 
vendor  a  lien  on  the  property  until  payment  in  full  of  the  purchase- 
money,  it  is  liable  to  be  defeated  by  creditors  of  the  purchaser  who 
is  in  possession  of  it.  This  was  held  in  MiircJi  v.  Wright,  46  id. 
488.  In  that  case  the  purchaser  took  from  the  seller  a  piano  at 
the  price  of  $700.  He  paid  $50  down,  which  was  called  rent  for 
the  first  month,  and  agreed  to  pay,  as  rent,  $50  each  month,  until 
the  whole  amount  should  be  paid,  when  he  was  to*  own  the  piano. 
The  court  held,  "that  it  was  a  mere  subterfuge  to  call  this  transac- 
tion a  lease,"  and  that  it  was  a  conditional  sale,  with  the  right 
of  rescission  on  the  part  of  the  vendor,  in  case  the  purchaser  should 
fail  in  payment  of  his  installments, — a  contract  legal  and  valid 
as  between  the  parties,  but  subjecting  the  vendor  to  lose  his  lien 
in  case  the  property,  while  in  possession  of  the  purchaser,  should 
be  levied  upon  by  his  creditors.  That  case  and  the  one  at  bar  are 
alike  in  all  essential  particulars. 

The  engine  Smyser,  the  only  subject  of  controversy  in  this 
suit,  was  sold  on  condition  that  each  and  all  of  the  installments 
should  be  regularly  paid,  with  a  right  of  rescission  on  the  part  of 
the  vendor  in  case  of  default  in  any  of  the  specified  payments. 

It  is  true  the  instrument  of  conveyance  purports  to  be  a  lease, 
and  the  sums  stipulated  to  be  paid  are  for  rent ;  but  this  form  was 
used  to  cover  the  real  transaction,  as  much  so  as  was  the  rent  of 
the  piano  in  Miirch  v.  Jl'right,  supra.  There  the  price  of  the  piano 
was  to  be  paid  in  thirteen  months,  and  here,  that  of  the  engine. 
$12,093.96,  in  one  year.  It  was  evidently  not  the  intention  that 
this  large  sum  should  be  paid  as  rent  for  the  mere  use  of  the 
engine  for  one  year.  If  so,  why  agree  to  sell  and  convey  the  full 
title  on  the  payment  of  the  last  installment?  In  both  cases,  the 
stipulated  price  of  the  property  was  to  be  paid  in  short  installments, 
and  no  words  employed  by  the  parties  can  have  the  effect  of 
changing  the  true  nature  of  the  contracts.  In  the  case  at  bar  the 
agreement  contemplated  that  the  engine  should  be  removed  to  the 
State  of  Illinois,  and  used  by  Conant  &  Co.,  in  the  prosecution  of 
their  business  as  constructors  of  a  railroad.  It  was  accordingly 
taken  there  and  i)ut  to  the  use  for  which  it  was  purchased ;  but 

25 


386  PRIVATE     INTEKNATIONAL    LAW. 

while  in  the  possession  o.  Conant  &  Co.,  who  exercised  complete 
ownership  over  it,  it  was  seized  and  sold,  in  the  local  courts  of 
Illinois,  as  their  property.  These  proceedings  were  valid  in  the 
jurisdiction  where  they  took  place,  and  must  be  respected  by  the 
Federal  tribunals. 

The  Rock  Island  Locomotive  Works  took  the  risk  of  losing 
its  lien  in  case  the  property,  while  in  the  possession  of  Conant  & 
Co.,  should  be  levied  on  by  their  creditors,  and  it  cannot  complain, 
as  the  laws  of  Illinois  pointed  out  a  way  to  preserve  and  perfect 
its  lien. 

By  stipulation  the  judgment  of  the  court  below  is  affirmed  as 
to  the  locomotive  Olney,  No.  i. 

As  to  the  locomotive  and  tender  called  Alfred  N.  Smyser, 
No.  3,  Judgment  reversed. 


MARVIN  SAFE  CO.  v.  NORTON,  1886. 

[48  N.  J.  L.  410.] 

On  May  ist,  1884,  one  Samuel  N.  Schwartz,  of  Hightstown, 

Mercer  county,  New  jersey,  went  to  Philadelphia,  Pennsylvania, 

and  there,  in  the  office  of  the  prosecutors,  executed  the  following 

instrument : 

"May  I  St,  1884. 

'Marvin  Safe  Company: 

"Please  send,  as  per  mark  given  below,  one  second-hand  safe, 
for  which  the  undersigned  agrees  to  pay  the  sum  of  eighty-four 
dollars  ($84),  seven  dollars  cash,  and  balance  seven  dollars  per 
month.  Terms  cash,  delivered  on  board  at  Philadelphia  or  New 
York,  unless  otherwise  stated  in  writing.  It  is  agreed  that  Marvin 
Safe  Company  shall  not  relinquish  its  title  to  said  safe,  but  shall 
remain  the  sole  owners  thereof  until  above  sum  is  fully  paid  in 
money.  In  event  of  failure  to  pay  any  of  said  installments  or 
notes,  when  same  shall  become  due,  then  all  of  said  installments  or 
notes  remaining  unpaid  shall  immediately  becomes  due.  The  Mar- 
vin Safe  Company  may,  at  their  option,  remove  said  safe  without 
legal  process.  It  is  expressly  understood  that  there  are  no  condi- 
tions whatever  not  stated  in  this  memorandum,  and  the  under- 
signed agrees  to  accept  and  pay  for  safe  in  accordance  therewith. 

Samuel  N.  Schwartz. 

"Mark— Samuel  L.  Schwartz,  Hightstown,  New  Jersey. 

"Route — New  Jersey. 

"Not  accountable  for  damages  after  shipment." 


PERSONAL    PROPERTY    AND    RKAI,    I'ROPERTY.  387 

Schwartz  paid  the  first  instalhiient  of  $7  May  ist,  1884,  and 
the  safe  was  shipped  to  him  the  same  day.  He  afterwards  paid 
two  instaHmctits,  of  $7  each,  l)y  rem.ittance  to  Philadelphia  by 
check.     Nothing  more  was  paid. 

On  July  30th,  1884,  Schwartz  sold  and  delivered  the  safe  to 
Norton  for  $55.  Norton  paid  him  the  purchase  money.  He 
bought  and  paid  for  the  safe  without  notice  of  Schwartz's  agree- 
ment with  the  prosecutors.  Norton  took  possession  of  the  safe 
and  removed  it  to  his  office.  Schwartz  is  insolvent  and  has 
absconded. 

The  prosecutor  brought  trover  against  Norton,  and  in  the 
court  below  the  defendant  recovered  judgment,  on  the  ground  that 
the  defendant,  having  bought  and  paid  for  the  safe  bona  fide,  the 
title  to  the  safe,  by  the  law  of  Pennsylvania,  was  transferred  to 
him. 

The  opinion  of  the  court  was  delivered  by 

Depue,  J.  The  contract  expressed  in  the  written  order  of 
May,  1884,  signed  by  Schwartz,  is  for  the  sale  of  the  property  to 
him  conditionally,  the  vendor  reserving  the  title,  notwithstanding 
delivery,  until  the  contract  price  should  be  paid.  The  courts  of 
Pennsylvania  make  a  distinction  between  the  bailment  of  a  chattel, 
with  power  in  the  bailee  to  become  the  owner  on  payment  of  the 
price  agreed  upon,  and  the  sale  of  a  chattel  with  a  stipulation  that 
the  title  shall  not  pass  to  the  purchaser  until  the  contract  price  shall 
be  paid.  On  this  distinction  the  courts  of  that  state  hold  that  a 
bailment  of  chattels,  with  an  option  in  the  bailee  to  become  the 
owner  on  payment  of  the  price  agreed  upon,  is  valid,  and  that  the 
right  of  the  bailor  to  resume  possession  on  nonpayment  of  the 
contract  price  is  secure  against  creditors  of  the  bailee  and  bo)ia  fide 
purchasers  from  him  ;  but  that  upon  the  delivery  of  personal  prop- 
erty to  a  purchaser  under  a  contract  of  sale,  the  reservation  of 
title  in  the  vendor  until  the  contract  price  is  paid  is  void  as  against 
creditors  of  the  purchaser  or  a  bona  fide  purchaser  from  him.  Clow 
V.  Woods,  S  S.  &  R.  275;  Enlozv  v.  /v7t'/;/,  79  Peniia.  St.  488; 
Haak  V.  Lindennaii.  64  Id.  499;  Stadfeld  v.  Huufsiiiau,  92  Id. 
53;  Brunsimck  v.  Hoover,  95  Id.  508;  i  Benj.  on  Sales  (Corbin's 
ed.)  §  446;  30  Am.  Law  Reg.  224,  Note  to  Lewis  v.  McCabe. 

In  the  most  recent  case  in  the  Supreme  Court  of  Pennsylvania 
Mr.  Justice  Sterrett  said:  "A  present  sale  and  delivery  of  jicr- 
sonal  property  to  the  vendee,  coupled  with  an  agreen^ent  that  the 
title  shall  not  vest  in  the  latter  unless  he  pays  the  price  agreed  upon 


388  PRIVATE    INTERNATIONAL    LAW. 

at  the  time  appointed  therefor,  and  that  in  default  of  such  pay- 
ment the  vendor  may  recover  possession  of  the  property,  is  quite 
different  in  its  effect  from  a  bailment  for  use,  or,  as  it  is  some- 
times called,  a  lease  of  the  property,  coupled  with  an  agreement 
whereby  the  lessee  may  subsequently  become  owner  of  the  property 
upon  payment  of  a  price  agreed  upon.  As  between  the  parties 
to  such  contracts,  both  are  valid  and  binding;  but  as  to  creditors, 
the  latter  is  good  while  the  former  is  invalid."  Forest  v.  Nelson, 
19  Rep.  38;  108  Penna  St.  481. 

The  cases  cited  show  that  the  Pennsylvania  courts  hold  the 
same  doctrine  with  respect  to  bona  Me  purchasers  as  to  creditors. 

In  this  state,  and  in  nearly  all  of  our  sister  states,  conditional 
sales — that  is,  sales  of  personal  property  on  credit,  with  delivery  of 
possession  to  the  purchaser  and  a  stipulation  that  the  title  shall  re- 
main in  the  vendor  until  the  contract  price  is  paid — have  been  held 
valid,  not  only  against  the  immediate  purchaser,  but  also  against 
his  creditors  and  bona  Me  purchasers  from  him,  unless  the  vendor 
has  conferred  upon  his  vendee  indicia  of  title  beyond  mere  posses- 
sion, or  has  forfeited  his  right  in  the  property  by  conduct  which 
the  law  regards  as  fraudulent.     The  cases  are  cited  in  Cole  v. 
Berry,  13  Vroom  308;  Midland  R.  R.  Co.  v.  Hitchcock,  10  Steiv. 
Eq.   549,  559;   I   Benj.  on  Sales   (Corbin's  ed.)    §§  437-460;   i 
Smith's  Lead.  Cas.  {8th  ed.)  33-90;  30  Am.  Law  Reg.  224,  note 
to  Lewis  V.  McCabe;   15  Am    Lazv  Rev.  380,  ///'.  "Conversion 
by     purchase."       The     doctrine     of     the     courts     of     Pennsyl- 
vania is  founded  upon  the  doctrine  of  Twyne's  Case,  3  Rep.  80, 
and  Edwards  v.  Harbin,  2  T.  R.  587,  that  the  possession  of  chattels 
under  a  contract  of  sale  without  title  is  an  indelible  badge  of  fraud 
— a  doctrine  repudiated  quite  generally  by  the  courts  of  this  coun- 
try, and  especially  in  this  state.     Riinyon  v.  Groshon,  i  Beas.  86; 
Broadway  Bank  v.  McElrath,  2  Id.  24;  Miller  ads.  Pancoast,  5 
Dnfcher  250.     The  doctrine  of  the  Pennsylvania  courts  is  disap- 
proved by  the  American  editors  of  Smith's  Leading  Cases  in  the 
note  to  Twyne's  Case,  i  Sin.  Lead.  Cas.  {Sth  ed.)  33,  34,  and  by 
Mr.  Landreth  in  his  note  to  Lezvis  z'.  McCabc,  30  Am.  Law  Reg. 
224 ;  but  nevertheless  the  Supreme  Court  of  that  state,  in  the  latest 
case  on  the  subject — Forest  v.  Nelson,  decided   February    i6th, 
1885 — has  adhered  to  the  doctrine.    It  must  therefore  be  regarded 
as  the  law  of  Pennsylvania  that  upon  a  sale  of  personal  property 
with  delivery  of  possession  to  the  purchaser,  an  agreement  that 
title  should  not  pass  until  the  contrac.  i:)rice   should  be  paid   is 
valid  as  between  the  original  parties,  but  that  creditors  of  the  pur- 


PERSONAL  PROPERTY  AND  REAL  PROPERTY.  389 

chaser,  or  ?.  purchaser  frorn  him  bona  fide,  by  a  levy  under  execu- 
tion or  a  bona  fide  purcliase,  will  acquire  a  better  title  than  the 
orijrinal  purchaser  had — a  title  superior  to  that  reserved  by  his 
vendor.  So  far  as  the  law  of  Pennsylvania  is  applicable  to  the 
transaction  it  must  determine  the  rights  of  these  parties. 

The  contract  of  sale  between  the  Marvin  Safe  Company  and 
Schwartz  was  made  at  the  company's  office  in  Philadelphia.  The 
contract  contemplated  performance  by  delivery  of  the  safe  in 
Philadelphia  to  the  carrier  for  transportation  to  Hightstown. 
^^1^en  the  terms  of  sale  are  agreed  upon,  and  the  vendor  has  done 
evervthing  that  he  has  to  do  with  the  goods,  the  contract  of  sale 
becomes  absolute.  Leonard  v.  Daz'is,  i  Black  476;  i  Bcnj.  on 
Sales,  §  308.  Delivery  of  the  safe  to  the  carrier  in  pursuance  of 
the  contract  was  delivery  to  Schwartz,  and  was  the  execution  of 
the  contract  of  sale.  His  title,  such  as  it  was,  under  the  terms  of 
the  contract  was  thereupon  complete. 

The  validity,  construction  and  legal  effect  of  a  contract  may 
depend  either  upon  the  law  of  the  place  where  it  is  made  or  of  the 
place  where  it  is  to  be  performed,  or,  if  it  relate  to  movable  prop- 
erty, upon  the  law  of  the  situs  of  the  property,  according  to  circum- 
stances ;  but  when  the  place  where  the. contract  is  made  is  also 
the  place  of  performance  and  of  the  situs  of  the  property,  the  law 
of  that  place  enters  into  and  becomes  part  of  the  contract,  and 
determines  the  rights  of  the  parties  to  it.  Fredericks  v.  Frazer, 
4  Zab.  162  ;  Dacosta  v.  Davis.  Jd.  319 ;  Bulkley  v.  Honold,  19  How. 
390;  Scudder  v.  Union  National  Bank,  91  U.  S.  406;  Pr  it  chard  v. 
Norlon,  106  Id.  124;  Morgan  v.  N.  O.,  M.  &  T.  R.  R.  Co.,  2 
Woods  244;  Simpson  v.  Fogo,  9  Jur.  (N.  S.)  403;  IVhart.  Confi. 
of  Law,  §§  341,  345,  401,  403,  418;  Parr  v.  Brady,  8  Vroom  201. 
The  contract  between  Schwartz  and  the  company  having  been 
made,  and  also  executed  in  Pennsylvania  by  the  delivery  of  the 
safe  to  him.  as  lietween  him  and  the  company  Schwartz's  title  will 
be  determined  by  the  law  of  Pennsylvania.  By  the  law  of  that 
state  the  condition  expressed  in  the  contract  of  sale  that  the  safe 
company  should  not  relinquish  title  until  the  contract  price  was 
paid,  and  that  on  the  failure  to  pay  any  of  the  installments  of  the 
price  the  company  might  resume  possession  of  the  property,  was 
valid  as  between  Schwartz  and  the  company.  By  his  contract 
Schwartz  obtained  possession  of  the  safe  and  a  right  to  acquire 
title  on  payment  of  the  contract  price;  but  until  that  condition  was 
performed  the  title  was  in  the  company.  In  this  situtaion  of  affairs 
the  safe  was  brought  into  this  state,  an(.  die  property  became  sub- 
ject to  our  laws. 


390  PRIVATE    INTERNATIONAL    LAW. 

The  contract  of  Norton,  the  defendant,  with  Schwartz  for  the 
purchase  of  the  safe  was  made  at  Hightstown  in  this  state.  The 
property  was  then  in  this  state,  and  the  contract  of  purchase  was 
executed  by  dehvery  of  possession  in  this  state.  The  contract  of 
purchase,  the  domicile  of  the  parties  to  it,  and  the  situs  of  the 
subject  matter  of  purchase  were  all  within  this  state.  In  every 
respect  the  transaction  between  Norton  and  Schwartz  was  a  New 
Jersey  transaction.  Under  these  circumstances,  by  principles  of 
law  which  are  indisputable,  the  construction  and  legal  effect  of  the 
contract  of  purchase,  and  the  rights  of  the  purchaser  under  it  are 
determined  by  the  law  of  this  state.  By  the  law  of  this  state 
Norton,  by  his  purchase,  acquired  only  the  title  of  his  vendor — 
only  such  title  as  the  vendor  had  when  the  property  was  brought 
into  this  state  and  became  subject  to  our  laws. 

It  is  insisted  that  inasmuch  as  Norton's  purchase,  if  made  in 
Pennsylvania,  would  have  given  him  a  title  superior  to  that  of 
the  safe  company,  that  therefore  his  purchase  here  should  have 
that  effect,  on  the  theory  that  the  law  of  Pennsylvania,  which  sub- 
jected the  title  of  the  safe  company  to  the  rights  of  a  bona  fide  pur- 
chaser from  Schwartz,  was  part  of  the  contract  between  the  com- 
pany and  Schwartz.  There  is  no  provision  in  the  contract  between 
the  safe  company  and  Schwartz  that  he  should  have  power,  under 
any  circumstances,  to  sell  and  make  title  to  a  purchaser. 
Schwartz's  disposition  of  the  property  was  not  in  conformity  with 
his  contract,  but  in  violation  of  it.  His  contract,  as  construed  by 
the  laws  of  Pennsylvania,  gave  him  no  title  which  he  could  law- 
fully convey.  To  maintain  title  against  the  safe  company  Norton 
must  build  up  in  himself  a  better  title  than  Schwartz  had.  •  He 
can  accomplish  that  result  only  by  virtue  of  the  law  of  the  juris- 
diction in  which  he  acquired  his  rights. 

The  doctrine  of  the  Pennsylvania  courts  that  a  reservation  of 
title  in  the  vendor  upon  a  conditional  sale  is  void  as  against  cred- 
itors and  bona  fide  purchasers,  is  not  a  rule  affixing  a  certain  con- 
sti  action  and  legal  effect  to  a  contract  made  in  that  state.  The 
legal  effect  of  such  a  contract  is  conceded  to  be  to  leave  property 
in  the  vendor.  The  law  acts  upon  the  fact  of  possession  by  the 
purchaser  under  such  an  arrangement,  and  makes  it  an  indelible 
badge  of  fraud  and  a  forfeiture  of  the  vendor's  reserved  title  as 
in  favor  of  creditors  and  bona  fide  purchasers.  The  doctrine  is 
founded  upon  considerations  of  public  policy  adopted  in  that  state, 
and  applies  to  the  fact  of  possession  and  acts  of  ownership  under 
such  a  contract,  without  regard  to  the  place  where  the  contract 


PERSONAL    PRrU'F.RTY    AND    REAL    PROPERTY.  391 

was  made,  or  its  legal  effect  considered  as  a  contract.  In  McCabe 
V.  Blymyry,  9  Pliila.  Rep.  615,  the  controversy  was  with  respect 
to  the  rights  of  a  mortgagee  under  a  chattel  mortgage.  The  mort- 
gage had  been  made  and  recorded  in  Maryland,  where  the  chattel 
was  when  the  mortgage  was  given,  and  by  the  law  of  Maryland 
was  valid  though  the  mortgagor  retained  possession.  The  chattel 
was  afterwards  brought  into  Pennsylvania,  and  the  Pennsylvania 
court  held  that  the  mortgage,  though  valid  in  the  state  where  it 
was  made,  would  not  be  enforced  by  the  courts  of  Pennsylvania 
as  against  a  creditor  or  purchaser  who  had  acquired  rights  in  the 
property  after  it  had  been  brought  to  that  state ;  that  the  mort- 
gagee, by  allowing  the  mortgagor  to  retain  possession  of  the  prop- 
erty and  bring  it  into  Pennsylvania,  and  exercise  notorious  acts  of 
ownership,  lost  his  right  under  the  mortgage  as  against  an  inter- 
vening Pennsylvania  creditor  or  purchaser,  on  the  ground  that 
the  contract  was  in  contravention  of  the  law  and  policy  of  that 
state.  Under  substantially  the  same  state  of  facts  this  court  sus- 
tained the  title  of  a  mortgagee  under  a  mortgage  made  in  another 
state,  as  against  a  bona  fide  purchaser  who  had  bought  the  property 
of  the  mortgagor  in  this  state,  for  the  reason  that  the  possession 
of  the  chattel  by  the  mortgagor  was  not  in  contravention  of  the 
public  policy  of  this  state.    Parr  v.  Brady,  8  Vrooni  201. 

The  public  policy  which  has  given  rise  to  the  doctrine  of  the 
Pennsylvania  courts  is  local,  and  the  law  which  gives  effect  to  it 
is  also  local,  and  has  no  extra-territorial  effect.  In  the  case  in 
hand  the  safe  was  removed  to  this  state  by  Schwartz  as  soon  as 
be  became  the  purchaser.  His  possession  under  the  contract  has 
been  exclusively  in  this  state.  That  possession  violated  no  public 
policy — not  the  public  policy  of  Pennsylvania,  for  the  possession 
was  not  in  that  state;  nor  the  public  policy  of  this  state,  for  in 
this  state  possession  under  a  conditional  sale  is  regarded  as  lawful. 
and  does  not  invalidate  the  vendor's  title  unless  impeached  for 
actual  fraud.  If  the  right  of  a  purchaser,  under  a  purchase  in  this 
state,  to  avoid  the  reserved  title  in  the  original  vendor  on  such 
grounds  be  conceded,  the  same  right  must  be  extended  to  creditors 
buying  under  a  judgment  and  execution  in  this  state;  for,  by  the 
law  of  Pennsylvania,  creditors  and  bona  fide  purchasers  are  put 
upon  the  same  footing.  Neither  on  principle  nor  on  considerations 
of  convenience  or  public  policy  can  such  a  right  be  concedetl. 
Under  such  a  condition  of  the  law  confusion  and  uncertainty  in  the 
tide  to  property  would  be  introduced,  and  the  transmission  of  the 
title  to  movable  property,  the  situs  of  which  is  in  this  state,  would 


392  PRIVATE     INTERNATIONAL    LAW. 

depend,  not  upon  our  laws,  but  upon  the  laws  and  public  policy 
of  sister  states  or  foreign  countries.  A  purchaser  of  chattels  in  this 
state,  which  his  vendor  has  obtained  in  New  York  or  in  most  of 
our  sister  states  under  a  contract  of  conditional  sale,  would  take 
no  title ;  if  obtained  under  a  conditional  sale  in  Pennsylvania,  his 
title  would-  be  good ;  and  the  same  uncertainty  would  exist  in  the 
title  of  purchasers  of  property  so  circumstanced  at  a  sale  under 
judgment  and  execution. 

The  title  was  in  the  safe  company  when  the  property  in  dis- 
pute was  removed  from  the  State  of  Pennsylvania.  Whatever 
might  impair  that  title — the  continued  possession  and  exercise  of 
acts  of  ownership  over  it  by  Schwartz  and  the  purchase  by  Norton 
— occurred  in  this  state.  The  legal  effect  and  consequences  of 
those  acts  must  be  adjudged  by  the  law  of  this  state.  By  the  law 
of  this  state  it  was  not  illegal  nor  contrary  to  public  policy  for  the 
company  to  leave  Schwartz  in  possession  as  ostensibe  owner,  and 
no  forfeiture  of  the  company's  title  could  result  therefrom.  By 
the  law  of  this  state  Norton,  by  his  purchase,  acquired  only  such 
title  as  Schwartz  had  under  his  contract  with  the  company.  Noth- 
ing has  occurred  which  by  our  law  will  give  him  a  better  title. 

The  judgment  should  be  reversed. 


CLEVELAND  MACHINE  WORKS  v.  LANG,  1892. 

[67  N.  H.  348.] 


/ 


Replevin,  for  two  machines,  hereinafter  described,  situate  in 
the  Granite  Mills  in  Northfield.  and  attached  as  both  real  and  per- 
sonal estate  by  the  defendant,  a  deputy  sheriff,  on  a  writ  in  favor 
of  Denny,  Rice  &  Co.  against  Edward  P.  Parsons.  Plea,  the  gen- 
eral issue,  and  a  brief  statement  that  the  machines  w'ere  the  prop- 
erty of  said  Parsons,  and  that  they  had  become  annexed  to  the 
Granite  Mills  and  liable  to  attachment  as  part  of  the  realty.  Facts 
found  by  the  court. 

The  negotiations  for  the  machines  were  had  and  completed 
with  the  plaintiff's  at  their  place  of  business  in  Worcester,  Mass., 
by  one  Green,  as  agent  for  Parsons  who  resided  in  Boston.  Aside 
from  the  agreement  of  the  plaintiffs  to  send  one  of  their  employes 
to  Northfield  to  set  up  the  machines,  which  they  did,  the  terms  oi 
the  contract  were  as  follow? : 

''TiLTON,  N.  H.,  Oct.  14,  1890. 

"Borrowed  and  received  of  Cleveland  Machi're  Works, 
Worcester,   Mass.,   the    following   macinnery.      If   the    price   set 


PERSONAL  PROPERTY  AND  REAL  PROPERTY.  393 

against  them  is  paid  as  per  memorandum  below,  the  property  is 
then  to  belong  to  Edward  P.  ['arsons,  otherwise  it  remains  the 
property  of  the  said  Cleveland  Machine  Works.  Notes  and  drafts, 
if  given,  are  not  to  be  considered  as  payments  until  they  are 
paid  ;  and  all  part  payments  are  to  be  forfeited  by  the  non-payment 
of  balance  at  time  stated.  In  the  meantime  the  said  Edward  P. 
Parsons  is  to  keep  the  property  in  good  order,  and  may  use  it 
free  from  any  other  charge:  and  the  said  Edward  P.  Parsons 
further  agrees  to  pay  such  price  as  per  memorandum  below,  and 
to  keep  the  property  sufficiently  insured  for  the  benefit  of  the 
said  Cleveland  Machine  Works.  List  of  machinery  included  in 
the  above  agreement  as  follows,  with  prices  annexed : 

One  10-4  Cloth  Dryer  with  No.  8  Exhauster,  i,ooo 
feet  Heater,  and  clothing  of  brass  wire  set  in 
leather  and  paper,  $1,100.00 

Terms  of  payment :  $300.00  cash  thirty  days  after 
shipment,  balance   four  months   note,  $800.00,   dated 
at  time  of  shipment  and  interest  added. 
One  90-inch  Blanket  Gig  and  one  set  of  slats,  215.00 

Terms  of  payment :  $50.00  cash  thirty  days  after 
shipment,  balance  ($165.00)  five  months  note,  dated 
at  time  of  shipment,  with  interest  added. 

Edward  P.  Parsons." 
This  paper  was  signed  by  Parsons  in  Boston,  and  delivered 
to  the  plaintiffs  before  the  machines  were  shipped,  but  it  has  never 
been  recorded  in  Northfield,  or  elsewhere  in  this  state.  Soon 
afterwards  the  plaintiffs  shipped  the  machines  from  Worcester, 
Parsons  paying  the  freight  to  Northneld.  The  machines  were 
placed  in  his  mill,  and  used  therein  until  his  failure,  which 
•occurred  siiortly  afterwards.  The  dryer  weighed  7,000  pounds 
and  the  gig  3.800  pounds.  The  gig  was  not  fastened  to  the  floor 
at  all,  and  the  dryer  by  only  two  or  three  screws.  Parsons  never 
paid  but  $100  on  the  contract,  and  never  claimed  the  machines 
to  be  his  property.  At  the  time  of  the  Denny.  Rice  &  Co.  at- 
tachment, neither  they  nor  the  defendant  had  notice  of  the  plain- 
tiffs' lien. 

Clark,  J.  By  the  terms  of  the  contract  the  machines  were  to 
remain  the  property  of  the  Cleveland  Machine  Works  uniil  i)aid 
for.  The  contract  was  negotiated  in  Massachusetts,  by  citizens 
of  Massachusetts,  respecting  ])roperty  situated  in  Massachusetts. 


394  PRIVATE    INTERNATIONAL    LAW. 

The  shipment  of  the  machines  at  Worcester — Parsons  paying  the 
freight  from  that  point — made  Worcester  the  place  of  dehvery, 
and  vested  in  Parsons  all  the  right  and  interest  he  ever  acquired 
in  the  property.  The  agreement  to  send  a  man  to  set  up  the 
machines  at  Northfield  was  not  a  condition  precedent  to  the  vest- 
ing of  the  conditional  title  in  Parsons,  any  more  than  an  agree- 
ment to  furnish  instruction  as  to  the  mode  of  operating  the 
machines  would  have  been.  The  written  agreement  shows  that 
the  parties  understood  that  the  conditional  title  passed  upon  the 
shipment  of  the  machines,  by  fixing  the  time  of  payment  from 
that  date.  The  contract  was  a  conditional  sale  of  chattels  in 
Massachusetts,  negotiated  and  completed  there  by  Massachusetts 
parties,  and  valid  by  the  law  of  Massachusetts ;  and  being  valid 
where  it  was  made,  its  validity  was  not  affected  by  the  subse- 
quent removal  of  the  property  to  New  Hampshire.  Sessions  v. 
LitHe,  9  N.  H.  271  ;  Smith  v.  Godfrey,  28  N.  H.  379;  Stevens  v, 
Norris,  30  N.  H.  466. 

As  a  general  rule,  contracts  respecting  the  sale  or  transfer  of 
personal  property,  valid  where  made  and  where  the  property  is 
situated,  will  be  upheld  and  enforced  in  another  state  or  country, 
although  not  executed  according  to  the  law  of  the  latter  state, 
unless  such  enforcement  would  be  in  contravention  of  positive 
law  and  public  interests.  A  personal  mortgage  of  property  in. 
another  state,  executed  and  recorded  according  to  the  laws  of 
that  state,  is  valid  against  the  creditors  of  the  mortgagor  attach- 
ing the  property  in  this  state,  although  the  mortgage  is  not 
recorded  here.  Offutt  v.  Flagg,  10  N.  H.  46;  Ferguson  v.  Clif- 
ford, 37  N.  H.  86.  A  mortgagor  of  horses  in  Massachusetts, 
bringing  them  into  this  state,  cannot  subject  them  to  a  lien  for 
their  keeping  against  the  Massachusetts  mortgagee.  Sargent  v. 
Usher,  55  N.  H.  287.  A  boarding-house  keeper's  lien  under  the 
laws  of  Massachusetts  is  not  lost  by  bringing  the  property  into 
this  state.     Jaquith  v.  American  Express  Co.,  60  N.  H.  61. 

Formerly  by  the  laws  of  Vermont  a  chattel  mortgage  was 
invalid  against  creditors  of  the  mortgagor  if  the  property  re- 
mained in  his  possession.  Rui  it  v.as  held  in  Vermont  and 
in  New  Hampshire  that  a  mortgage  of  personal  property  in 
New  Hampshire,  duly  executed  and  recorded  according  to  the 
law  of  New  Hampshire,  was  valid  against  creditors  of  the 
mortgagor  attaching  the  property  in  his  possession  in  Vermont. 
Cobb  V.  Bns7vcU,  37  Vt.  337;  Lathe  v.  Schoff,  60  N.  H.  34.     In 


PERSONAL  PROPERTY  AND  REAL  PROPERTY.  395 

Cobb  V.  Biiszvell  the  property  was  taken  to  Vermont  with  the  con- 
sent of  the  mortgagee,  and  in  Lathe  v.  Schoif  it  was  understood, 
when  the  mortgage  was  executed,  that  the  horses  mortgaged 
were  to  be  removed  to  \  ermont  by  the  mortgagor  and  kept  there 
after  the  season  of  summer  travel  closed.  So  a  chattel  mortgage 
made  by  a  citizen  of  Massachusetts  temporarily  in  New  York 
with  the  mortgaged  property,  if  valid  by  the  law  of  New  York, 
is  valid  against  the  creditors  of  the  mortgagor  attaching  the  prop- 
erty in  his  possession  in  Massachusetts.  Langzvorthy  v.  Little, 
12  Cush.  109. 

The  law  of  New  Hampshire  respecting  conditional  sales  has 
no  extra-territorial  force,  and  does  not  apply  to  sales  made  out  of 
the  state.  Neither  the  parties  nor  the  subject-matter  of  the  con- 
tract respecting  the  machines  were  within  its  operation.  If  the 
conditional  sale  had  been  made  in  this  state  before  the  statute  was 
enacted  requiring  an  affidavit  of  the  good  faith  of  the  transaction 
and  a  record  in  the  town  clerk's  office,  it  would  not  have  been 
affected  by  the  statute.  When  the  machines  were  brought  to  this 
state,  there  was  no  provision  of  the  statute  for  recording  the 
plaintiffs'  lien.  There  was  no  change  or  transfer  of  title  in  this 
state,  and  the  title  of  the  plaintiffs,  valid  against  creditors  under  a 
contract  completed  in  Massachusetts,  was  not  destroyed  by  the 
removal  of  the  property  to  New  Hampshire. 

Smith  V.  Moore,  ii  N.  H.  55,  cited  by  the  defendant  as  sus- 
taining the  position  that  the  plaintiffs'  lien  was  destroyed  because 
there  was  no  law  in  this  state  providing  for  a  record  in  such  a 
case,  is  an  authority  against  the  defendant.  In  that  case  the 
property  was  in  this  state  when  the  mortgage  was  made,  the 
mortgagor  residing  out  of  the  state.  The  court  say, — "If  the 
property  had  been  situated  out  of  the  state  when  the  mortgage 
was  made,  and  the  mortgage  had  been  valid  according  to  the  law 
of  the  place,  a  subsequent  removal  of  the  property  to  this  state 
would  not  have  affected  its  validitv,"  citing  Offutt  v.  Flagg,  10 
N.  H.  46. 

Conditional  sales  were  valid  in  this  state  without  record  until 
January  i,  1886.  Mcl'arhind  v.  Farmer,  42  N.  H.  386;  Holt  v. 
Holt,  58  N.  H.  276;  JVeclcs  v.  Pike,  60  N.  H.  447.  The  statute 
of  1885,  e.  30.  had  no  apj)lication  to  contracts  between  parties 
residing  out  of  the  state,  and  made  no  provision  fcr  recording 
such   contracts.      The    fact   that   the   contract    is   not    within    the 


.396  PRIVATE    INTERNATIONAL    LAW. 

Statute  is  an  answer  to  die  position  that  the  plaintiffs'  title  is  to 
be  tested  by  the  law  of  New  Hampshire. 

The  attachment  of  the  real  estate  gave  the  defendant  no  pos- 
session of  or  right  of  property  in  the  machines.  Scott  v.  Manches- 
ter Print  Works,  44  N.  H.  507.  By  attaching  them  as  personal 
property,  the  defendant  claims  to  hold  the  possession  and  prop- 
erty in  them,  as  the  property  of  Parsons,  for  the  benefit  of  the 
attaching  creditors.  If  Parsons  had  an  attachable  interest  sub- 
ject to  the  plaintiffs'  lien,  the  defendant's  claim  to  hold  the  entire 
property  under  the  attachment  entitles  the  plaintiffs  to  maintain 
replevin,  if  they  have  any  title  to  the  machines  and  there  is  no 
estoppel.  As  between  the  plaintiffs  and  Parsons,  the  machines 
were  the  property  of  the  plaintiffs.  They  were  never  the  property 
of  Parsons.  He  was  simply  a  bailee,  and  never  claimed  to  own 
them. 

"Judgment  and  execution  liens  attach  to  the  defendant's  real, 
instead  of  his  apparent,  mterest  in  the  property.  It  follows  from 
this  that  the  sale  made  under  such  a  lien  can  ordinarily  transfer 
no  interest  beyond  that  in  fact  held  by  the  defendant  when  the 
lien  attached,  or  acquired  by  him  subsequently  thereto  and  before 
the  sale."  Freem.  Ex.,  .y.  335.  A  purchaser  at  a  sheriff's  sale, 
there  being  no  estoppel,  acquires  no  title  to  property  not  belong- 
ing to  the  debtor.    Bryant  v.  Whitcher,  52  N.  H.  158. 

An  attaching  creditor  is  not  in  the  position  of  a  purchaser  for 
a  valuable  consideration  without  notice  of  any  defect  of  title. 
The  defendant,  and  the  creditors  of  Parsons  whom  he  represents, 
do  not  occupy  the  relation  of  bona  tide  vendees  or  mortgagees  for 
value  without  notice.  They  stand  no  better  than  Parsons,  who 
never  owned  or  claimed  to  own  the  machines.  Their  claim  to 
liold  the  property  against  the  plaintiffs'  title  is  based  upon  Par- 
son's ownership,  and  not  upon  any  attempted  transfer  of  title  by 
him  to  them  ;  and  as  he  had  no  title  they  took  nothing  by  the 
attachment. 

The  case  has  no  analogy  to  an  attachment  of  property  to 
which  the  debtor  has  a  voidable  title  valid  until  rescinded  {Brad- 
lex  V.  Obear,  10  N.  H.  477),  or  to  the  numerous  class  of  cases 
where  the  debtor  once  had  a  valid  title  which  he  has  conveyed 
or  transferred  in  fraud  of  creditors. 

As  Parsons  had  no  title  to  the  machines,  and  as  no  legal  or 
equitable  ground  of  estoppel  to  the  assertion  of  the  plaintiffs' 
title  is,  shown,  the  plaintiffs  are  entitled  to  judgment. 

Judgment  for  the  plaintiffs. 


PERSONAL    rROI'F.klV    AND    RKAL    PROPERTY.  397 

EMERY  V.  CLOUGH,  1885. 
[63  N.   H.   5S2.] 

Bill  in  Equity,  under  Gen.  Laws.  c.  209,  s.  2,  for  discovery, 
and  the  restoration  of  a  municipal  hind  for  $1,000,  alleged  to 
belong  to  the  estate  of  William  Emery,  the  plaintiff's  intestate, 
unlawfully  withheld  hy  the  defendant ;  also  a  suit  at  law  to  recover 
$280  of  money  claimed  to  be  in  the  hands  of  the  defendant  belong- 
ing to  the  estate.     Facts  found  by  the  court. 

The  legal  domicile  of  said  William  Emery  during  his  whole 
life  was  at  Loudon,  in  this  state.  May  21,  1882,  being  very  sick 
while  temporarily  at  Montpelicr,  \'t.,  he  delivered  to  the  defendant 
as  a  donatio  causa  mortis,  the  bond  in  question,  and  six  days  after- 
wards also  delivered  to  her,  as  like  gifts  to  several  persons  residing- 
in  Loudon,  the  sum  of  $280,  to  be  by  her  distributed  to  the  parties- 
by  him  designated,  after  his  death.  No  one  was  present  when  the 
bond  and  money  were  delivered  by  William  to  the  defendant,  and 
the  defendant  offers  no  evidence  to  prove  the  same,  except  her 
owni  testimony,  and  a  memorandum  signed  by  William  but  not 
witnessed.  The  plaintiff  objected  to  the  evidence  oft'ered  as  incom- 
petent and  insufficient.  The  mem.orandum  may  be  referred  to  in 
argument.  No  attempt  has  been  made  by  defendant  or  any  one 
else  to  prove  the  above  gifts,  according  to  the  requirements  of 
Gen.  Laws,  c.  193,  s.  ly. 

Smith,  J.  It  is  contended  on  the  part  of  the  defendant  that 
the  transaction  in  Vermont,  whereby  the  defendant  became  pos- 
sessed of  the  bond,  was  a  donatio  causa  mortis,  valid  as  an  executed 
contract  under  the  laws  of  \^ermont,  and  therefore  valid  here. 
The  plaintiff'  contends  that  the  transaction  was  in  the  nature  of 
a  testamentary  disposition  of  property,  and  if  valid  in  Vermont  as 
a  donatio  causa  mortis,  it  is  not  valid  in  this  state  because  it  was 
not  proved  by  the  testimony  of  two  indift'erent  witnesses  upon 
petition  bv  the  donee  to  the  probate  court  to  establish  the  gift, 
filed  within  sixty  days  after  the  decease  of  the  donor.  G.  L.,c.  193, 
s.  17.  The  domicile  of  the  parties  at  the  time  of  the  delivery  of 
the  bond  to  the  defendant,  and  ever  afterwards,  to  the  death  of  the 
donor,  being  in  this  estate,  it  is  claimed  that  die  neglect  of  the 
defendant  to  establish  the  gift  in  the  probate  court  is  fatal  to  her 
right  to  reiain  the  bond.  Every  requisite  to  constitute  a  valid  gift 
causa  mortis  under  the  laws  of  \'ermont.  where  the  parties  wer*: 


398  PRIVATE    INTERNATIONAL    LAW. 

temporarily  residing  at  the  time  of  the  dehvery  of  the  bond,  was 
complied  with.  Holley  v.  Adams,  i6  Vt.  206;  Caldzvcll  v.  Ren- 
freiv,  33  Vt.  213;  French  v.  Raymond,  39  Vt.  623.  Every  requis- 
ite, also,  to  constitute  such  a  gift  under  the  laws  of  New  Hamp- 
shire was  complied  with  except  the  post  mortem  proceedings  re- 
quired by  our  statute.  The  question  therefore  is,  whether  the  lex- 
loci  or  the  lex  domicilii  governs;  and  the  answer  to  this  question 
depends  upon  the  legal  character  and  efifect  of  such  gifts. 

A  gift  causa  mortis  is  often  spoken  of  in  the  books  as  a  testa- 
mentary disposition  of  property,  or  as  being  in  the  nature  of  a 
legacy.  Jones  v.  Brozvn,  34  N.  H.  439;  i  Wms.  Ex'rs,  686,  n.  i. 
And  such  was  the  doctrine  of  the  civil  law.  2  Kent  Com.  444,  and 
authorities  cited  in  note  h.  Such  gifts  are  always  made  upon  con- 
dition that  they  shall  be  revocable  during  the  life-time  of  the 
donor,  and  that  they  shall  revest  in  case  he  shall  survive  the 
donee,  or  shall  be  delivered  from  the  peril  of  death  in  which  they 
were  made.  The  condition  need  not  be  expressed,  as  it  is  always 
implied  when  the  gift  is  made  in  the  extremity  of  sickness,  or  in 
contemplation  of  death.  It  is  sometimes,  perhaps  generally,  said  in 
the  English  cases  that  a  gift  causa  mortis  does  not  vest  before  the 
donor's  death;  but  in  Nicholas  v.  Adams,  2  Whart.  (Pa.)  17,  Gib- 
son, C.  J.,  considered  this  to  be  inaccurate,  holding  that  this  gift, 
like  every  other,  is  not  executory,  but  executed  in  the  first  instance 
ty  delivery  of  the  thing,  though  defeasible  by  reclamation,  the  con- 
tingency of  survivorship,  deliverance  from  peril,  or  from  some 
other  act  inconsistent  with  the  gift,  and  indicating  the  donor's 
purpose  to  resume  the  possession  of  the  gift,  i  Wms.  Ex'rs  686, 
n.  I  ;  Marshall  v.  Berry,  13  Allen  43,  46. 

A  gift  causa  mortis  resembles  a  testamentary  disposition  of 
property  in  this, — that  it  is  made  in  contemplation  of  death,  and 
is  revocable  during  the  life  of  the  donor.  It  is  not,  however,  a 
testament,  but  in  its  essential  characteristics  is,  what  its  name  indi- 
cates, a  gift.  Actual  delivery  by  the  donor  in  his  life-time  is 
necessary  to  its  validity,  or  if  the  nature  of  the  property  is  such 
that  it  is  not  susceptible  of  corporeal  delivery,  the  means  of  obtain- 
ing possession  of  it  must  be  delivered.  The  donee's  possession 
must  continue  during  the  life  of  the  donor,  for  recovery  of  pos- 
session by  the  latter  is  a  revocation  of  the  gift.  But  in  case  of  a 
legacy,  the  possession  remains  with  the  testator  until  his  decease. 
The  title  to  a  gift  causa  mortis  passes  by  the  delivery,  defeasible 
only  in  the  life-time  of  the  donor,  and  his  death  perfects  the  title 
in  the  donee  by  terminating  the  donor's  right  or  power  of  defea- 


PERSONAL  PROPERTY  AND  REAL  PROPERTY.  399 

sance.  The  property  passes  from  the  donor  to  the  donee  directly, 
and  not  throui;h  the  executor  or  administrator,  and  after  his  death 
it  is  Hahle  to  he  divested  only  in  favor  of  the  donor's  creditors. 
In  this  respect  it  stands  the  same  as  a  gift  inter  z'iz'os.  It  is 
defeasible  in  favor  of  creditors,  not  liecause  it  is  testamentary,  hut 
because,  as  against  creditors,  one  cannot  give  away  his  proix-rty. 
A  gift  causa  mortis  is  not  subject  to  probate,  nor  to  contril)ution 
with  lagacies  in  case  the  assets  are  insufficient,  nor  to  any  of  the 
incidents  of  administration.  It  is  not  revocable  by  will,  for,  as 
a  will  does  not  operate  until  the  decease  of  the  testator,  and  the 
■donor,  at  his  decease,  is  divested  of  his  property  in  the  subject  of 
the  gift,  no  right  or  title  in  it  passes  to  his  representatives.  The 
donee  takes  the  gift,  not  from  the  administrator,  but  against  him, 
and  no  act  or  assent  on  the  part  of  the  administrator  is  necessary  to 
perfect  the  title  of  the  donee.  Cutting  v.  Gilman,  41  N.  H.  147. 
151  ;  Marshall  v.  Berry,  supra;  Doty  v.  IVillson,  47  N.  Y.  580,  585  ; 
Dole  v.  Lincoln,  31  Me.  422;  Chase  v.  Redding,  13  Gray  418; 
Basket  V.  Hasscll,  107  U.  S.  602;  i  Wms.  Ex'rs  686,  n.  i.  A 
valid  gift  inter  vivos  may  be  made  on  similar  terms.  Worth  v. 
Case,  42  N  Y.  362;  Dean  v.  Car  ruth,  108  Mass.  242;  Warren  v. 
Durfee,  126  Mass.  338. 

A  gift  causa  mortis  in  some  respects  may  be  said  to  resemble 
a  contract,  the  mutual  consent  and  concurrent  will  of  both  parties 
being  necessary  to  the  validity  of  the  transfer.  2  Kent  Com.  437, 
438 ;  I  Pars.  Cont.  234.  Contracts  are  commonly  understood  to 
Tnean  engagements  resulting  from  negotiation.  2  Kent  Com. 
437.  And  in  Peirce  v.  Burroughs,  58  N.  H.  302,  it  was  held  that 
the  assent  of  both  parties  is  as  necessary  to  a  gift  as  to  a  contract. 

Prior  to  the  passage  of  c.  106,  Laws  of  1883,  the  law  required 
a  will  to  be  executed  according  to  the  law  of  the  testator's  domicile 
at  the  time  of  his  death.  Saunders  v.  Williams,  5  N.  H.  213; 
Heydock's  Appeal,  7  N.  H.  496.  The  distribution  of  the  estate 
of  a  deceased  person  among  the  heirs  or  legatees  is  to  be  made 
according  to  the  law  of  the  domicile  of  the  testator  or  intestate 
at  the  time  of  his  death.  Leach  v.Pillsbury,  15  N.H.  137.  But  the 
plaintiff's  intestate  did  not  die  possessed  of  the  bond  in  suit.  It 
did  not  vest  in  his  administrator,  and  is  not  assets  of  his  estate. 
The  defeasible  title  wliich  vested  in  the  defendant  at  the  time  of 
the  delivery  was  not  defeated  by  the  donor  in  his  life-time,  and  his 
right  and  power  to  defeat  it  ceased  with  his  death.  .\  gift  causa 
mortis  is  not  a  testament.  If  it  is  a  contract,  in  this  case  it  was 
executed  in  \'ermont  in  the  life  of  the  plaint ift"s  intestate.     If  it 


400  PRIVATE    INTERNATIONAL    LAW. 

is  not  a  contract,  as  that  term  is  commonly  understood,  it  is  a  gift: 
which  received  the  assent  of  both  parties,  and  nothing  remained  to 
perfect  the  conditional  title  of  the  defendant  before  the  decease  of 
the  donor.  The  transfer  of  the  bond  being,  therefore,  either  an 
executed  contract  or  a  perfected  gift  in  Vermont,  and  valid  under 
the  laws  of  Vermont,  is  valid  here ;  and  no  question  arises  whether 
our  statute  (G.  L.,  r.  193,  ^.  17)  affects  the  contract  or  the  remedy. 
That  section  applies  to  gifts  made  in  this  state. 

As  to  the  sum  of  $280,  the  money  was  deliverd  to  the  defend- 
ant as  gifts  causa  mortis  to  sundry  persons  then  and  now  residing 
in  this  state  designated  by  the  donor,  to  be  by  the  defendant  deliv- 
ered to  them  after  his  decease.  Delivery  to  a  third  person  for  the 
donee's  use  is  as  effectual  as  delivery  to  the  donee.  Cutting  v. 
Gilman,  41  N.  H.  147,  151,  152.  and  authorities  cited;  Drury  v. 
Smith,  I  P.  Wms.  404;  Marshall  v.  Berry,  13  Allen  43.  And  there- 
is  no  suggestion  that  the  gift  of  the  money  stands  differently  from 
that  of  the  bond. 

The  question  as  to  mode  of  proof  remains  to  be  considered. 
In  the  first  case,  it  has  not  been  shown  and  it  does  not  appear  that 
injustice  will  be  done  by  excluding  the  defendant  from  testifying. 
G.  L.,  c.  228,  ^-y.  13,  16.  17.  As  that  question  has  not  been  passed 
upon  at  the  trial  term  it  is  still  open,  and  the  ruling  of  the  judge 
will  be  subject  to  exception  and  revision.  The  written  memoran- 
dum on  the  envelope  containing  the  bond,  signed  by  the  plaintiff's 
intestate  and  produced  by  the  defendant,  reads  as  follows:  "Given 
to  Hannah  K.  Clough  on  condition  if  I  regain  my  health  it  is  to  be 
returned  to  me  in  good  faith,  otherwise  the  gift  is  absolute.  Wil- 
liam Emery."  This  memorandum  is  evidence  sufficient  to  establish 
a  gift  causa  mortis.  Curtis  v.  Portland  Saz'ings  Bank,  yy  Me.,  151 
— 5".  C,  52  Am.  R.  750.  It  contains  a  statement  of  no  more  than 
is  always  implied  when  such  a  gift  is  made.  The  donor  could  not 
tell  whether  he  should  die,  or  recover  from  his  sickness.  If  he 
should  recover,  the  law  would  hold  the  gift  void.  Grymcs  v. 
Hone,  49  N.  Y.  17,  21. 

In  the  second  case,  the  defendant  is  a  nominal  party.  The  real 
defendants  are  the  donees.  The  facts  stated  show  no  reason  why 
she  should  not  be  allowed  to  testify,  and  injustice  might  be  done  if 
she  were  excluded.  Drew  v.  McDaniel,  Adm'r,  60  N.  H.  480; 
Welch  V.  Adams,  63  N.  H.  344,  351. 

CcLse  discharged.-'' 

'"A  mortgage  of  personal  property    valid  where  executed   and   where 
the  property  was  located  at  the  time  is  valid  in  other  fetates,  and  the  rights 


PERSONAL  PROPKKTV  AND  KKAL  PKOPKKTV.  401 

of  the  mortgagee  are  vested  rights  and  can  not  be  taken  away.  However, 
a  state  may  provide  for  the  recording  of  chattel  mortgages  executed  in 
another  state  within  a  reasonable  time  after  the  mortgaged  property  is 
brought  into  the  state,  this  is  to  protect  creditors  and  purchasers  in  good 
faith  for  value. 

Greenville  Nat.  Bank  v.  Evans  Co.  g  Okla.  333:  Langworthy  v.  Little, 
12  Cush.  109. 

A  chattel  mortgage  in  one  state  may  not  be  vaild  in  another  state. 
Chattel  mortgage  laws  have  no  force  beyond  the  jurisdiction  of  the  sov- 
ereignty enacting  them.     J'innig  v.  Millar,  joo  Mich.  J03.  and  cases  cited. 

A  chattel  mortgage  made  in  Missouri  by  a  person  domiciled  there,  to 
a  citizen  of  Kansas,  upon  property  situated  in  Kansas,  is  governed  by  the 
law  of  Kansas.     Mackey  v.  Petti  John,  6  Kans.  /Ipfy.  57. 

Real  Property. — No  lands  can  be  acquired  or  passed  unless  according 
to  the  laws  of  the  state  in  which  they  are  situate.  Clark  v.  Graham,  6 
Wheat.  37/;  Sn'ank  v.  Hufnagle,  in  Ind.  433,  r2  N.  E.  303;  Shattuck  zk 
Bates,  92  Wis.  633,  66  N.  W.  706.  The  nature,  extent  of  interest,  and 
validity  of  conveyance  are  determined  by  the  law  of  the  place  where  the 
land  is"  situated.  Glover  v.  U.  S.,  29  Ct.  CI.  236:  Banner  v.  Brewer,  69  Ala. 
191;  Moore  v.  Church,  70  loiva  .-o^:  Fessenden  v.  Taft,  63  N.  H.  39,  17 
Atl.  Rep.  713.  A  deed  valid  according  to  rhe  law  of  the  place  where  the 
land  is  situated  is  a  good  conveyance,  although  it  is  not  a  good  deed 
according  to  the  law  of  the  place  of  making.  Post  v.  Nat.  Bank,  138  III. 
339,  28  N.  E    978;  Manton  v.  Seiberling.  107  loica  334,  78  N.  W.  194.^ 

A  deed  of  lands  situated  in  North  Carolina  executed  in  South  Caro- 
lina liy  a  married  woman  living  there,  was  in  due  form  executed  and 
acknowledged,  according  to  the  laws  of  South  Carolina,  with  covenants  of 
warranty.  Held,  that  while  both  deed  and  covenant  were  valid  by  the 
laws  of  South  Carolina,  both  were  void  in  North  Carolina,  as  the  deed  was 
defectively  acknowledged ;  that  the  deed  being  void,  the  covenant  worked 
no  esioppel  against  the  maker,  although  valid  where  made.  Smith  v. 
Ingram,  130  N.  C.  wo,  40  S.  E.  9S4.  There  is  great  confusion  upon  the 
question  involved  in  this  case.  Some  courts  have  expressly  held  the  oppo- 
site. Phelps  V.  Decker,  10  Mass.  2^)7;  Poison  v.  Stewart,  167  JJass._  2ji^^ 
43  N.  E.  737.  36  L.  R.  A.  177,  37  Am.  St.  Rep.  432.  Certain  ailtKorities 
have  taken  the  broad  ground  that  all  controversies  affecting  real  estate 
must  be  settled  by  the  Ir.r  situs.  Johnston  v.  Gawtry,  11  Mo.  App.  322. 
On  the  other  hand,  it  has  been  held  that  covenants  arc  personal  contracts 
and  if  valid  where  made  are  valid  and  enforcible  everywhere.  Oliver  v. 
Loye,  39  Miss.  320.  Others  have  noted  a  distinction  between  covenants 
running  with  the  land  and  those  not  runnmg  with  the  land.  The  latter 
would  be  valid  in  other  jurisdictions  even  if  inoperative  according  to  the 
law  of  the  place  where  th-.;  land  is.  Bcthcll  v.  Bethell.  34  Ind.  428.  \ 
covenant  of  warranty  is  an  accessory  contract.  Holland.  Jurisprudence 
(3th  cd.)  261.  On  principle  it  then  seems  that  when  there  is  in  effect  no 
principal  contract,  no  collateral  agreement  which  rests  merely  on  the 
existence  of  the  main  obligation  can  be  supported.  Michigan  Lcm.'  Rez'iezv 
(Nov.,  1902)  page  141. 


ikt  p. 


26 


CHAPTER  XIII. 

CONTRACTS. 

1.  Theory  of  the  Law  of  Contracts.  7.  Performance  of  Contract. 

2.  Place  Where  Contract  is  Made.  8.  Discharge  of  Contract. 

3.  Validity  of  Contract.  9.  Usurious  Contracts. 

4.  Formalities  of  Contract.  10.  Statute  of  Frauds. 

5.  Obligation  of  Contract.  n.  Contracts  of  Married  Women. 

6.  Interpretation  of  Contract.  12.  Contracts  of  Carriers. 

Sir  Joseph  Holland  (Jurisprudence  Chap.  XII,  p.  181) 
says : 

"In  the  fuller  language  of  Savigny  an  obligation  is  the 
"control  over  another  person,  yet  not  over  this  person  in  all 
"respects  (in  which  case  his  personality  would  be  destroyed)  but 
"over  single  acts  of  his  which  must  be  conceived  of  as  substracted 
"from  his  free  will  and  subjected  to  our  will;  or  according  to 
"Kant,  'the  possession  of  the  will  of  another  as  a  means  of  deter- 
"mining  it  through  your  own  in  accordance  with  the  law  of  free- 
"dom  to  a  definite  act.'  An  obligation,  as  its  etymology  denotes, 
"is  a  tie,  whereby  one  person  is  bound  to  perform  some  act  for  the 
"benefit  of  another.  In  some  cases  the  two  parties  agree  thus  to 
"be  bound  together.  In  other  cases  they  are  bound  without  their 
"consent.  In  every  case  it  is  the  lazv  zvliich  ties  the  knot;  and  its 
"untying,  solntio,  is  competent  only  to  the  same  authority.  There 
"are  cases  in  which  a  merely  moral  duty  giving  rise  to  what  is 
"called  a  natural  as  opposed  to  a  civil  obligation  will  incidentall\ 
"receive  legal  recognition.  As  if  a  person  pays  a  debt  barred  by 
"statute  of  limitations  he  will  not  be  allowed  to  receive  the 
"money,  though  paid  in  ignorance." 

Mr.  Justice  Markby  (Elements  of  Law  considered  with  ref- 
erence to  principles  of  general  jurisprudence)  says: 

"It  seems  in  some  cases  to  have  been  thought  that  it  was  an 
"easier  process  to  arrive  at  liability  when  there  was  intention 
"than  when  there  was  none ;  it  being  apparently  forgotten  that  the 
"affixing  of  liability  is  an  independent  process  to  which  the  pre- 
"liminary  requisite  and  the  only  one  is  the  sovereign  will." 

Lord  Justice  Turner  said  (Pen.  etc.,  Naz'.  Co.  v.  Shaiid,  3 
Moore,  P.  C,  N.  S.,  290-1): 

"The  general  rule  is  that  the  law  of  the  country  where  a 
"contract  is  made  governs  as  to  the  nature,  the  obligation,  and 


CONTRACTS.  403 

"the  interpretation  of  it.  The  parties  to  a  contract  are  either  the 
"subjects  of  the  jxjwer  there  ruhng,  or,  as  temporary  residents, owe 
"it  a  temporary  allegiance.  In  either  case,  eciually,  they  must  be 
'"'understood  to  submit  to  ihc  law  there  prevailing,  and  to  agree 
"to  its  action  upon  their  contracts.  It  is,  of  course,  immaterial 
"that  such  agreement  is  not  expressed  in  terms.  It  is  equally  an 
"agreement  in  fact,  presumed  dc  jure;  and  a  foreign  court,  inter- 
"pretmg  or  enforcing  it  on  any  contrary  rule,  defeats  the  intention 
"of  the  parties,  as  well  as  neglects  to  observe  the  recognized 
'"comity  of  nations." 


EQUITABLE  LIFE  ASSURANCE  CO.  v.  CLEMENTS,  1891. 

[140  U.  S.  226.] 

This  was  an  action  brought  by  Alice  L.  Wall,  a  citizen  of 
Missouri  and  widow  of  Samuel  E.  Wall,  and  prosecuted  by  Ben- 
jamin F.  Pettus.  her  administrator,  against  the  Equitable  Life 
As.surance  Society  of  the  United  States,  a  corporation  of  New 
York  and  doing  business  in  Missouri,  on  a  policy  of  insurance 
executed  by  the  defendant  at  his  office  in  the  city  of  New  York 
on  December  23,  1880.  upon  the  life  of  Samuel  E.  Wall,  by  which, 
in  consideration  of  the  payment  of  $136.25  by  him,  and  of  the 
payment  of  a  like  sum  on  or  before  December  15  in  each  year 
during  the  continuance  of  the  contract,  it  promised  to  pay  to  Alice 
L.  Wall,  his  wife,  $5,000  at  his  office  in  the  city  of  New  York, 
within  sixty  days  after  satisfactory  proofs  of  his  death.   . 

"And  further,  that  if  the  premiums  upon  this  policy  for  not 
less  than  three  complete  years  of  assurance  shall  have  been  duly 
received  by  said  society,  and  this  policy  should  thereafter  become 
void  in  consequence  of  default  of  payment  of  a  subsequent  pre- 
mium, said  society  will  issue,  in  lieu  of  such  policy,  a  new  paid-up 
policy,  without  participation  in  profits,  in  favor  of  said  Alice  L. 
Wall,  if  living,"  "for  the  entire  amount  which  the  full  reserve  on 
this  policy,  according  to  the  present  legal  standard  of  the  State 
of  New  York,  will  then  purchase  as  a  single  premium,  calculated 
by  the  regular  table  for  single-premium  policies  now  published 
and  in  use  by  the  society :  Provided,  however,  that  this  po\ky  shall 
be  surrendered,  duly  receipted,  within  six  months  of  the  date  of 
default  in  the  payment  of  premium,  as  mentioned  above. 

"This  policy  is  issued  and  accepted  upon  the  condition  that 
the  provisions  and  requirements  printed  or  written  by  the  society 
upon  the  back  of  this  policy  are  accepted  by  the  assured  as  part  of 


404  PRIVATE    INTERNATIONAL     LAW. 

this  contract  as  fully  as  if  they  were  recited  at  length  over  the  sig- 
natures hereto  affixed." 

Among  the  provisions  and  rec|uirements  printed  on  the  back 
of  the  policy  were  the  following: 

"4.  All  premiums  are  due  in  the  city  of  New  York,  at 
the  date  named  in  the  policy;  but  at  the  pleasure  of  the  society 
suitable  persons  may  be  authorized  to  receive  such  payments 
at  other  places,  but  only  on  the  production  of  the  society's 
receipt  therefor,  signed  by  the  president,  vice-president,  actuary, 
secretarv  or  assistant  secretary,  and  countersigned  by  the  person 
to  whom  the  payment  is  made.  No  payment  made  to  any  person, 
except  in  exchange  for  such  receipt,  will  be  recognized  by  the 
society.  All  premiums  are  considered  payable  annually  in  ad- 
vance ;  when  the  premium  is  made  payable  in  semi-annual  or  quar- 
terly installments,  that  part  of  the  year's  premiums,  if  any,  which 
remains  unpaid  at  the  maturity  of  this  contract,  shall  be  regarded 
as  an  indebtedness  to  the  society  on  account  of  this  contract,  and 
shall  be  deducted  from  the  amount  of  the  claim;  and  if  any 
premium  or  installment  of  a  premium  on  this  policy  shall  not  be 
paid  when  due,  this  policy  shall  be  void ;  nevertheless  nothing 
herein  shall  be  construed  to  deprive  the  holder  of  this  policy  of  the 
privilege  to  demand  and  receive  paid-up  insurance  in  accordance 
with  the  agreement  contained  in  this  policy. 

"5.  The  contract  between  the  parties  hereto  is  completely  set 
forth  in  this  policy  and  the  application  therefor,  taken  together, 
and  none  of  its  terms  can  be  modified,  nor  any  forfeiture  under  it 
waived,  except  by  an  agreement  in  writing,  signed  by  the  presi- 
dent, vice-president,  actuary,  secretary  or  assistant  secretary  of 
the  society,  whose  authority  for  this  purpose  will  not  be  delegated. 

"6.  If  any  statement  made  in  the  application  for  this  policy  be 
in  any  respect  untrue,  this  policy  shall  be  void." 

The  application  for  tlie  policy  was  dated  at  Windsor  in  the 
State  of  Missouri,  December  15,  1880,  addressed  to  the  defendant, 
and  signed  by  Samuel  E.  Wall  and  Alice  L.  Wall ;  and  the  parts 
of  it  relied  on  by  the  defendants  were  as  follows : 

"27.  Does  the  person  for  whose  benefit  the  assurance  is 
efifected,  in  consideration  of  the  agreements  contained  in  the  policy 
hereby  applied  for  (providing  for  paid-up  insurance  in  the  event 
of  surrender  of  the  policy  at  certain  periods  and  under  certain 
conditions  specified),  waive  and  relinquish  all  right  or  claim  to 
any  other  surrender  value  than  that  so  provided,  whether  required 
1)y  a  statute  of  any  State  or  not  .-*"     "Yes." 


CONTRACTS.  405 

"It  is  hereby  declared  and  agreed  that  all  the  statements  and 
answers  written  on  this  application  are  warranted  to  be  true,  and 
are  offered  to  the  society  as  a  consideration  of  the  contract,  which 
shall  not  take  efifect  until  the  first  premium  shall  have  been  actu- 
ally paid  during  the  life  of  the  person  herein  proposed  for 
assurance." 

The  petition  alleged  that,  in  consideration  of  the  sum  of 
$136.25  paid  to  the  defendant  by  Samuel  E.  Wall,  and  of  the 
further  agreement  on  his  part  to  pay  to  the  defendant  an  annual 
premium  of  $136.25  on  or  before  December  15  in  each  year  during 
the  continuance  of  the  contract,  the  defendant  "made,  executed 
and  delivered  to  said  Sam.uel  E.  Wall,  who  was  then  and  all  the 
tmies  hereinafter  mentioned  a  resident  of  the  State  of  Missouri, 
and  in  which  state  the  said  policy  was  delivered  and  the  said 
premiums  paid,"  the  policy  of  insurance,  above  stated. 

The  answer  admitted  that  said  Wall  was  a  resident  of  the 
State  of  Missouri,  and  that  the  Dolicy  of  insurance,  "after  being 
applied  for  to  and  executed  by  the  defendant,  was,  at  the  request 
of  the  said  Wall,  transmitted  to  the  State  of  Missouri  and  was 
delivered  to  said  Wall  in  said  State,"  and  "that  the  annual  pre- 
miums- du2  on  said  policy  on  December  15,  1881,  and  December 
15,  1882,  were  paid,  as  also  the  cash  premium  due  wdien  said 
policy  was  issued." 

The  plaintiff  alleged  in  the  petition,  and  proved  at  the  trial, 
that  Samuel  E.  Wall  failed  to  pay  the  premium  due  December  15, 
1883;  that  he  died  January  21,  1884;  that  the  defendant,  on 
notice  of  h's  death,  denied  its  liability,  and  thereby  waived  further 
proof  thereof;  that  on  December  15,  1883,  the  policy  had  acquired 
a  net  value  of  $161.05.  ^^  computed  upon  the  American  experi- 
ence tal)le  of  mortality,  with  four  and  a  half  per  cent  annual 
interest ;  that  neither  Wall  nor  his  wife  was  then  indebted  to  the 
defendant,  on  account  of  past  premiums  on  the  policy,  or  other- 
wise ;  that  his  age  at  that  time  was  thirty-nine  years ;  and  that 
three-fourths  of  such  net  value,  applied  and  taken  as  a  net  single 
premitmi  for  temporary  insurance  for  the  full  amount  written  in 
the  policv,  would  continue  the  policy  in  force  until  August  30, 
1886. 

The  plaintiff  claimed  the  full  amount  of  the  policy,  with 
interest,  by  virtue  of  the  provisions  of  the  Revised  Statutes  of 
Missouri  of  1879.  which  are  copied'in  the  margin. 

The  grounds  of  defence  relied  on  were:  ist.  That  the 
polic}  was  a  contract  governed  by  the  laws  of  the  State  of  New 


406  PRIVATE    INTERNATIONAL    LAW. 

York  and  not  by  the  laws  of  the  State  of  Missouri.  2d.  That  if 
it  was  governed  by  the  laws  of  Missouri,  then  the  stipulations  in 
the  policy  and  in  the  application  therefor  were  valid  and  binding 
on  the  plaintiff  as  a  waiver  of  the  provisions  of  §  5983  of  the 
Revised  Statutes  of  Missoiu-i. 

The  court,  on  motion  of  the  plaintiff,  ordered  the  parts  of 
the  answer  which  set  up  these  defences  to  be  struck  out,  delivering 
the  opinion  reported  in  32  Fed.  Rep.  273  ;  and  afterwards,  upon  a 
submission  of  the  case  to  its  decision  without  a  jury,  declined  to 
sustain  these  defences,  and  rendered  judgment  for  the  plaintiff 
in  the  sum  of  $6,125.  The  defendant  duly  excepted  to  these 
rulings,  and  sued  out  this  writ  of  error. 

Mr.  Justice  Gray,  after  stating  the  case  as  above,  delivered 
the  opinion  of  the  court. 

Upon  the  question  whether  the  contract  sued  on  was  made 
in  New  York  or  in  Missouri,  there  is  nothing  in  the  record, 
except  the  policy  and  application,  the  petition  and  answer,  by 
which  the  facts  appear  to  have  been  as  follows :  The  assured  was 
a  resident  of  Missouri,  and  the  application  for  the  policy  was 
signed  in  Missouri.  The  policy,  executed  at  the  defendant's  ofifice 
in  New  York,  provides  that  "the  contract  between  the  parties 
hereto  is  completely  set  forth  in  this  policy  and  the  application 
therefor,  taken  together."  The  application  declares  that  the  con- 
tract "shall  not  take  effect  until  the  first  premium  shall  have  been 
actually  paid  during  the  life  of  the  person  herein  proposed  for 
assurance."  The  petition  alleges  that  that  premium  and  two 
annual  premiums  were  paid  in  Missouri.  The  answer  expressly 
admits  the  payment  of  the  three  premiums,  and,  by  not  contro- 
verting that  they  were  paid  in  Missouri,  admits  that  fact  also, 
if  material.  Missouri  Rev.  Stat.  1879,  §  3545-  The  petition 
further  alleges  that  the  policy  was  delivered  in  Missouri ;  and  the 
answer  admits  that  the  policy  was.  "at  the  request  of  the  said 
Wall,  transmitted  to  the  State  of  Missouri  and  was  delivered  to 
said  Wall  in  said  State."  If  this  form  of  admission  does  not  impl)* 
that  the  policy  was  at  the  request  of  Wall  transmitted  to  another 
person,  perhaps  the  company's  agent,  in  Missouri,  and  by  him 
there  delivered  to  Wall,  it  is  quite  consistent  with  such  a  state 
of  facts ;  and  there  is  no  evidence  whatever,  or  even  averment, 
that  the  policy  w-as  transmitted  by  mail  directly  to  Wall,  or  that 
the  company  signified  to  Wall  its  acceptance  of  his  application  in 
any  other  way  that  by  the  delivery  of  the  policy  to  him  in  Mis- 
souri. Upon  this  record,  the  conclusion  is  inevitable  that  the 
policy  never  became  a  completed  contract,  binding  either  party  to 


CONTRACTS. 


407 


it,  until  the  delivery  of  the  policy  and  the  payment  of  the  first 
premium  in  Missouri;  and  conscciuently  that  the  [xjlicy  is  a  Mis- 
souri contract  and  governed  by  the  laws  of  Missouri. 

By  the  revised  statutes  of  Missouri  of  1879,  in  force  when 
this  policy  was  made,  it  was  enacted  as  follows :  By  §  5983, 
"no  policy  of  insurance  on  life,  hereafter  issued  by  any  life 
insurance  company  authorized  to  do  business  in  this  State,  shall, 
after  pavment  upon  it  of  two  full  annual  premiums,  be  forfeited 
or  become  void,  by  reason  of  the  nonpayment  of  premium  thereon  ; 
but  it  shall  be  subject  to  the  following  rules  of  commutation,  to 
wit:"  The  net  value  of  the  policy  is  to  be  computed,  and  the 
insurance  is  to  continue  in  force  for  the  full  amount  of  the  policy 
for  such  time  as  three-fourths  of  such  net  value  will  be  a  premium 
for,  according  to  the  rules  of  commutation  prescribed  in  that 
section.  By  §  5984,  the  holder  of  the  policy,  within  sixty  days 
from  the  beginning  of  such  temporary  insurance,  may  elect  to 
take  a  paid-up  policy  for  such  amount  as  the  net  value  aforesaid 
would  be  a  premium  for.  By  §  5985,  if  the  assured  dies  within 
the  term  of  temporary  insurance,  as  determined  by  §  5983  and 
there  has  been  no  breach  of  any  other  condition  of  the  policy,  "the 
company  shall  be  bound  to  pay  the  amount  of  the  policy,  the  same 
as  if  there  had  been  no  default  in  the  payment  of  premium,  any- 
thing in  the  policy  to  the  contrary  notwithstanding." 

The  manifest  object  of  this  statute,  as  of  many  statutes  regu- 
lating the  form  of  policies  of  insurance  on  lives  or  against  fires, 
is  to  prevent  insurance  companies  from  inserting  in  their  policies 
conditions  of  forfeiture  or  restriction,  except  so  far  as  the  stat- 
ute permits.  The  statute  is  not  directory  only,  or  subject  to  be 
set  aside  by  the  company  with  the  consent  of  the  assured :  but  it 
is  mandatory,  and  controls  the  nature  and  terms  of  the  contract 
into  v.iiich  the  company  may  induce  the  assured  to  enter.  This 
clearlv  appears  from  the  unequivocal  words  of  command  and  of 
prohibition  aliove  qiToted,  bv  which,  in  §  5983.  "no  policy  of 
insurance"  issued  by  any  life  insurance  company  authorized  to  do 
business  in  this  State  "shall,  after  the  payment  of  two  full  annual 
premiums,  be  fi^rfeited  or  become  void,  by  reason  of  the  non- 
pa  vment  of  premium  thereon:  I'Ut  it  shall  be  subject  to  the  fol- 
lowing rules  of  conmiutation  :"  and.  in  i;  5985-  that  if  the  assured 
dies  within  the  term  of  temporary  insurance,  as  determined  in  the 
former  section,  "the  company  shall  be  bound  to  pav  the  amount 
of  the  nolicy,"  "anvthing  in  the  policy  to  the  contrary  notwith- 
standing." 

Tliis  construction  is  put  beyond  doubt  by  §  5986.  which,  by 


408  PRIVATE    INTERNATIONAL    LAW. 

specifyingf  four  cases  (two  of  which  relate  to  the  form  of  the 
poiicy)  m  which  the  three  preceding  sections  "shall  not  be  appli- 
cable," necessarily  implies  that  those  sections  shall  control  all 
cases  not  so  specified,  whatever  be  the  form  of  the  policy. 

Of  the  cases  so  specified,  the  only  ones  in  which  the  terms 
of  the  policv  are  permitted  to  differ  from  the  plan  of  the  statute 
are  the  first  and  second,  which  allow  the  policy  to  stipulate  for  the 
holder's  receiving  the  full  benefit,  either  in  cash,  or  by  a  new  paid- 
up  policy,  of  the  three-fourths  of  the  net  value,  as  determined  by 
§§  5983  and  5984.  The  other  two  cases  specified  do  not  contem- 
plate or  authorize  any  provision  in  the  contract  itself  inconsistent 
with  the  statute ;  but  only  permit  the  holder  to  surrender  the 
policy,  either  in  lieu  of  a  new  policy,  or  for  a  consideration 
adequate  in  his  judgment.  In  defining  each  of  these  two  cases, 
the  statute,  while  allowing  the  holder  to  make  a  new  bargain  with 
the  company,  at  the  time  of  surrendering  the  policy,  and  upon 
such  terms  as.  on  the  facts  then  appearing,  are  satisfactory  to  him, 
yet  significantly,  and,  it  must  be  presumed,  designedly,  contains 
nothing  having  the  least  tendency  to  show  an  intention  on  the 
part  of  the  legislature  that  the  company  might  require  the  assured 
to  agree  in  advance  that  he  would  at  any  future  time  surrender 
the  policy  or  lose  the  benefit  thereof,  upon  any  terms  but  those 
prescribed  in  the  statute. 

It  follows  that  the  insertion,  in  the  policy,  of  a  provision  for 
a  dififerent  rule  of  commutation  from  that  prescribed  by  the  statvite, 
in  case  of  default  of  payment  of  premium  after  three  premiums 
have  been  paid ;  as  well  as  the  insertion,  in  the  application,  of  a 
clause  by  which  the  beneficiary  purports  to  "waive  and  relinquish 
all  right  or  claim  to  any  other  surrender  value  than  that  so  pro- 
vided, whether  required  by  a  statute  of  any  State,  or  not ;"  is  an 
inefifectual  attempt  to  evade  and  nullify  the  clear  words  of  the 
statute.  Judgment  affirmed. 

NORTHAMPTON  MUTUAL  INS.  CO.  v.  TUTTLE,  1878. 

[40  N.  J.  L.  476.1 

Van  Syckel,  J.  The  plaintifif  brought  suit  before  a  justice 
of  the  peace  of  the  county  of  Warren,  to  recover  the  amount  of 
an  assessment  made  against  the  defendant  upon  a  policy  of 
insurance  issued  to  him  by  the  plaintifl^  company.  The  plaintiff 
recovered  a  judgment  before  the  justice,  v.diich  was  reversed  in 
the  Warren   Common   Pleas,   on   the  ground  that   the   insurance 


CONTRACTS.  409 

company,  plaintiff,  was  a  foreij^  insurance  company,  and  that  the 
contract  was  a  New  Jersey  contract,  neg'otiated  by  an  agent  in 
New  Jersey,  contrary  to  our  statute.     A''u-.  Dii^.  435,  §  66;  lb.  436, 

§73-  '  ' 

The  poHcy  was  dated  May  27th,  1872,  and  insured  defendant 

for  the  term  of  one  year.  An  assessment  was  made  July  2d,  1872, 
which  paid  the  company's  losses  to  that  date.  The  losses  from 
July  2d.  1872.  to  January  14th,  1873,  amounted  to  about  $12,000, 
and  this  sum  was  the  basis  of  the  assessment  for  which  the  defend- 
ant was  sued. 

The  property  issued  was  in  this  state,  where  the  defendant 
and  Thatciier,  one  of  the  directors  of  the  insurance  company, 
resided  when  the  policy  was  issued. 

The  application  was  signed  by  the  defendant  in  this  state, 
where  Thatcher  gave  him  a  receipt,  of  which  the  following  is  a 
copy  : 

"Northampton    Mutual     Live     Stock     Insurance     Company,     of 

Northampton  county.  Pa. 

"Received  of  Wm.  Tuttle,  for  an  insurance  by  the  North- 
ampton Mutual  Live  Stock  Insurance  Company  against  loss  by 
death  upon  the  animals  described  in  application,  the  sum  of  one 
dolla'-  and  thirty  cents,  being  the  amount  paid  for  membership  for 
the  term  of  one  year  from  the  27th  day  of  May.  1872,  for  which 
said  company  agrees  to  issue  a  policy  to  said  applicant  when  the 
application  is  approved,  and  if  not  approved,  the  above  amount  to 
be  refunded  to  the  said  applicant. 

"J.  B.  Th.\tcher, 

"Dated  ^lay  27th.  1872.  Agent." 

Article  \'T.  of  the  l)y-la\\s  of  tlie  company  provided  that  the 
agent  of  the  oon'paiiy  should  give  a  receipt  for  the  premium  paid, 
and  that  tb.e  insurance  should  take  effect  from  that  time,  provided 
the  application  was  approved  by  the  board  of  directors,  or  its 
executive  committee,  after  which  the  policy  would  be  issued  ;  and 
if  not  approved,  the  money  would  be  refunded. 

In  this  case  the  application  for  insurance  was  taken  by 
Thatcher  to  Easton,  in  the  State  of  Pennsylvania,  where  it  was 
approved  by  the  directors  of  the  comi>any,  and  the  policy  was 
there  issued  and  sent  by  mail  to  the  defendant,  in  New  Jersey. 

If  the  contract  of  insurance  was  made  in  the  State  of  Penn- 
sylvania, and  was  valid  there,  comity  requires  us  to  enforce  it 
here.     Coliiinbia  Ins.  Co   :■.  Kin  yon.  8  Vroom  ^^. 


410  PRIVATE    INTERNATIONAL    LAW. 

This  case,  therefore,  turns  upon  the  question  whether  it  was 
made  in  this  state. 

Thatcher  acted  as  the  agent  of  the  company,  with  authority 
to  receive  appHcations.  He  received  the  defendant's  apphcation, 
with  the  premium,  which  he  transmitted  to  the  company  at  its 
place  of  business  in  Pennsylvania.  By  the  express  terms  of  the 
receipt  given  by  the  agent  to  the  defendant,  the  company  had  the 
option  to  approve  the  application  and  issue  a  policy,  or  to  reject  it 
and  refund  the  premium.  It  was  a  mere  proposition,  from  which 
the  parties  might  have  receded,  and  not  a  contract.  Approval  by 
the  company  was  necessary  to  ripen  into  a  contract.  Not  until 
then  did  the  minds  of  the  parties  come  together,  and  invest  the 
transaction  with  the  attributes  of  a  valid  agreement.  The  contract 
of  insurance  must  be  regarded  as  having  been  made  when  the 
company  approved  the  defendant's  application,  and  issued  and 
transmitted  to  him  their  policy.  Hyde  v.  Goodnozv,  3  A''.  Y.  266 ; 
Huntley  v.  Merrill,  32  Barb.  626. 

The  contract  must  be  held  to  have  been  made  where  the  last 
act  necessary  to  complete  it  was  done. 

Although  there  is  some  conflict  in  the  cases,  I  think  the 
weight  of  authority  is,  that  when  the  oiTer  of  the  insured  was 
accepted,  and  the  policy  deposited  in  the  postoffice  by  the  com- 
pany, properly  addressed  to  the  insured,  the  contract  was  made. 
It  did  not  remain  incomplete  until  the  insured,  by  receiving  the 
policy,  v/as  notified  of  the  acceptance  of  his  proposal. 

In  McCh.lloch  V.  Eagle  Insurance  Company,  i  Pick.  278,  the 
Supreme  Court  of  Massachusetts,  on  the  Authority  of  Cooke  v. 
Oxley,  held  that  mailing  a  letter  acceeding  to  terms  offered  did 
not  complete  the  bargain,  but  the  views  expressed  by  the  court 
were  modified  in  a  later  case,  reported  in  10  Pick.  330. 

In  Adams  v.  Lindsell,  i  B.  &  Aid.  681,  the  bargain  was 
declared  to  be  perfected  when  the  letter  was  put  in  the  mail, 
giving  notice  to  the  other  party  of  the  acceptance  of  his  ofifer. 

This  question  is  ably  reviewed  by  Justice  Marcy,  in  Mactier 
V.  Frith,  6  Wend.  103,  in  which  the  Court  of  Errors  overruled  the 
decision  of  Chancellor  Walworth,  that  to  make  a  valid  contract  it 
is  not  only  necessary  that  the  minds  of  the  contracting  parties 
should  meet  on  the  subject  of  the  contract,  but  that  fact  must  be 
communicated  to  each  other. 

The  same  rule  prevails  in  the  Supreme  Court  of  the  United 
States.     Tayloe  v.  Merchants'  Fire  Insurance  Company,  9  How. 

390- 


CONTRACTS.  411 

It  has  also  the  unquahfied  approval  of  Chancellor  Kent.  2 
Kent's  Com.  (6th  cd.)  477. 

The  cases  in  this  state  are  to  the  same  effect.     Houghwoxit 
V.  Boisaiibm,  3  C  E.  Green  315;  Potls  v.   Whitehead,  5  C.  E. 
Green  55 ;  Commercial  Insurance  Company  v.  Hallock,  3  Butcher 

645- 

In  the  case  last  cited.  Justice  Elmer  says :     "It  being  well 

and  satisfactorily  established  at  law  that  the  acceptance  of  a 
proposition,  and  the  sending  notice  thereof  by  mail,  complete  the 
bargain,  although  the  letter  never  reaches  its  destination,  it  fol- 
lows that  the  company  were  bound  by  what  they  did  on  that  day, 
and  had  no  power  afterwards  to  revoke  it." 

A  bargain  must  be  considered  as  closed  when  no  mutual  act 
remains  to  be  done  to  entitle  cither  party  to  enforce  it. 

Under  the  adjudged  cases  it  seems  to  be  clear  that  if  the 
assured  had  suffered  loss  the  instant  after  the  policy  was  mailed, 
he  could  have  resorted  to  it  for  indemnity. 

The  case  in  hand  is  stronger  than  any  of  the  cases  cited,  for 
here,  by  the  express  terms  of  the  receipt,  there  was  a  stipulation 
on  the  part  of  the  company  to  issue  a  policy  when  the  application 
was  approved. 

After  the  approval  the  company  could  not  have  receded  from 
it,  but  would  have  been  bound  to  issue  the  policy.  Their  obli- 
gation to  do  so  did  not  depend  upon  notice  of  acceptance  to  the 
insured,  but  upon  the  fact  of  acceptance. 

It  being  conceded  that  the  approval  of  the  application  was 
given  in  Pennsylvania,  and  the  policy  mailed  there,  the  contract 
must  be  adjudged  to  have  been  made  in  that  state,  and  not  in  New 
Jersej'. 

The  contract,  therefore,  is  valid,  and  comity  requires  its 
enforcement  here.  Columbia  Fire  Insurance  Coinpa)iy  v.  Kinyon. 
8  Vroom  33. 

By  the  constitution  and  by-laws  of  the  company,  it  is  pro- 
vided, that  if  it  should  happen  that  the  funds  on  hand  be  insuf- 
ficient to  pay  all  losses  and  expenses,  the  directors  shall,  by  reso- 
lution, levy  a  tax  on  the  members  of  the  company,  as  their  policies 
stand  unexpired  on  the  books  of  the  company,  said  tax  to  be 
levied  on  the  amount  insured 

The  assessment  in  this  case  was  made  in  accordance  with  this 
by-law,  which  the  defendant,  as  a  member  of  the  plaintiflf  com- 
pany, is  presumed  to  know,  and  is  required  to  conform  to. 
Northampton  Mutual  Company  v.  Stewart .  10  Vroom  486. 


412  PRIVATE    INTERNATIONAL    LAW. 

The  judgment  of  the  Warren  Pleas,  that  the  contract  was 
void  under  the  statute  law  of  this  state,  was  erroneous,  and  should 
be  set  aside. 

JONES  V.  SURPRISE,  1886. 

[64  N.  H.  243-1 

Assumpsit,  to  recover  a  balance  due  for  the  sale  of  wines 
and  spirituous  liquors.  Plea,  the  general  issue,  with  a  brief 
statement  that  the  contract  was  void  under  Gen.  Laws,  c.  109,  s. 
18.     Facts  found  by  the  court. 

The  plaintiflfs  were  liquor  dealers  in  Boston,  and  the  defend- 
ant a  saloonkeeper  in  Suncook  at  the  time  of  the  sale  of  the 
liquors  in  suit.  The  plaintiffs'  agent  solicited  orders  for  the 
liquors  in  the  defendant's  saloon,  and  forwarded  the  orders  to  the 
plaintiff's  in  Boston,  liaving  no  authority  to  make  a  contract  for 
their  sale.  He  informed  the  defendant  that  the  liquors  would  be 
delivered  to  him  at  the  plaintiff's'  store-rooms  in  Boston.  When 
he  solicited  the  orders  he  had  no  knowledge  of  the  provisions  of  s. 
18,  c.  109,  Gen.  I.aws.  and  did  not  intend  the  violation  of  any 
law  of  this  state.  He  knew  at  the  time  of  the  sale  that  the  defend- 
ant bought  for  the  purpose  of  selling  in  violation  of  law.  The 
liquors  were  delivered  to  carriers  in  Boston  for  the  defendant, 
and  he  paid  the  cost  of  transportation  from  Boston  to  Suncook 
where  he  received  them.  Their  sale  was  authorized  by  the  law  of 
Massachusetts. 

The  plaintiffs  claimed  that  the  sale  being  valid  by  the  law  of 
Massachusetts,  the  law  of  this  state  prohibiting  the  taking  or 
soliciting  of  orders  did  not  invalidate  it.  They  further  claimed, 
that  as  the  statute  prohibits  the  taking  of  orders  for  spirituous  or 
distilled  liquors  only,  they  can  recover  for  the  wines.  There  was 
evidence  tendmo-  to  show  that  the  wines  were  intoxicating. 

Smith,  J.  It  is  made  a  criminal  offence  for  any  person  not 
an  agent  to  sell  or  keep  for  sale  spirituous  liquor,  or  for  any  per- 
son within  this  state  to  solicit  or  take  an  order  for  spirituous 
liquor  to  be  delivered  at  any  place  without  this  state,  knowing,  or 
having  reasonable  cause  to  believe,  that  if  so  delivered  the  same 
will  be  transported  to  this  state  and  sold  in  violation  of  our  laws. 
G.  L.  c.  109,  ss.  13,  18.  One  question  in  this  case  is,  whether 
intoxicating  wines  are  included  within  the  terms  of  this  statute. 
The  legislature  has  defined  intoxicating  liquor  as  follows:  "Bv 
the  words  'spirit,'  'spirituous,'  or  'intoxicating  liquor,'  shall  be 
intended  all  spirituous  or  intoxicating  liquor,  and  all  mixed  liquor, 


CONTRACTS.  413 

any  part  of  which  is  spirituous  or  intoxicating:!^,  unless  otherwise 
expressly  declared."  (].  h.,  c.  x,  ss.  i,  31.  As  intoxicatinj^f  wines 
and  other  intoxicating-  fermented  liquors  are  not  expressly 
excluded  from  the  operation  of  .?.y.  13,  18,  19,  c.  109,  of  the  (jen. 
Laws,  the  only  conclusion  is  that  they  come  within  the  prohibition 
of  its  terms.  No  reason  appears  why  the  legislature  should 
prohibit  the  solicitation  of  orders  for  one  class  of  intoxicating 
liquors  and  permit  it  as  to  others.  The  construction  of  statutes 
is  governed  by  legislative  definitions;  that  of  indictments  by  the 
ordinary  use  of  language.  State  v.  Adams,  51  N.  H.  568;  State 
V.  Canterbury,  28  N.  H.  195 :  State  v.  Biitman,  61  N.  H.  511,  515. 
The  remaining"  question  is,  whether  the  plaintififs  can  main- 
tain an  action  in  our  courts  for  the  price  of  liquors  sold  and  deliv- 
ered in  a  state  where  the  sale  is  lawful,  they  having  solicited  and 
taken  orders  for  the  liquors  in  this  state  in  violation  of  our  laws. 
That  their  authorized  agent,  who  solicited  and  took  the  orders, 
did  not  know  the  solicitation  or  taking  of  orders  was  prohibited, 
and  did  not  intend  the  violation  of  any  law,  is  immaterial.  A 
person  is  presumed  to  know  and  luiderstand  not  only  the  laws  of 
the  country  where  he  dwells,  but  also  those  in  which  he  transacts 
business.  In  /////  v.  Spear,  50  N.  H.  253  it  was  held  by  a 
majority  of  the  court  that  mere  solicitation  by  a  dealer  in  liquors 
of  orders  m  the  future  for  spirituous  liquors,  even  though  he 
may  have  had  reason  to  believe  and  did  believe  that  the  liquors 
would  be  resold  by  the  purchaser  in  violation  of  the  law  of  this 
state,  is  not  such  a  circumstance  as  will  affect  the  validity  of 
a  subsequent  sale  of  such  liquors  in  a  state  where  the  sale  is  not 
prohibited.  Numerous  decisions  in  England  and  in  this  country 
upon  the  subject  were  cited  and  discussed  in  that  case,  and  an 
extended  review  of  most  of  the  same  authorities  may  be  found  in 
Tracy  v.  Talinage,  14  N.  Y.  162.  Further  discussion  of  the 
authorities  is  not  called  for  at  the  present  time.  When  Hill  v. 
Spear  was  decided,  the  soliciting  of  orders  for  spirituous  liquors 
to  be  delivered  without  the  state  was  not  prohibited.  The  present 
statute  (G.  L.,  •:.  109.  .y.y.  18,  19),  first  enacted  in  1876  (Laws  of 
1876,  c.  33),  makes  the  mere  soliciting  or  taking  of  such  orders, 
or  the  going  from  place  to  place  soliciting  or  taking  such  orders, 
with  knowledge  or  reasonable  cause  to  believe  that  the  liquors 
will  be  transported  to  this  state  and  sold  in  violation  of  law.  with- 
out any  other  act  in  furtherance  of  the  vendee's  design,  a  criminal 
offence,  punishable  bv  fine  or  imprisonment.  The  i)laintitTs' 
authorized  agent,  who  solicited  and  took  these  orders  from  the 
defendant,   knew   the   lifiuors   wore   to   l)e  kept   and    sold   by   the 


414  PRIVATE    INTERNATIONAL    LAW. 

defendant  in  this  state  in  violation  of  law.     His  knowledge  is  in 
lav/  the  knowledge  of  the  plaintiffs. 

The  plaintiffs  contend  that  inasmuch  as  the  soliciting  of 
orders  constituted  no  part  of  the  contract  when  the  soliciting  was 
not  prohibited,  the  act  of  soliciting,  now  that  it  is  made  illegal, 
cannot  vitiate  a  contract  of  which  it  forms  no  part.  The  case 
is  not  affected  by  the  plaintiffs'  ability  to  prove  a  sale  without 
proof  of  the  solicitation.  No  people  are  bound  to  enforce  or 
hold  valid  in  their  courts  of  justice  any  contract  which  is  inju- 
rious to  their  public  rights,  or  offends  their  morals,  or  contra- 
venes their  policy,  or  violates  public  law.  And  every  independ- 
ent community  will  judge  for  itself  how  far  the  rule  of  comity 
between  states  is  to  be  permitted  to  interfere  with  its  domestic 
mterests  and  policy.  2  Kent  Com.  457,  458 ;  Hill  v.  Spear,  50  N. 
H.  253,  262;  Bliss  V.  Bramard,  41  N.  H.  256,  258.  The  object 
of  the  statute  of  1876  (G.  L.,  c.  109,  ss.  18,  19)  was  to  discourage 
the  sale  of  liquor  in  other  states  to  be  transported  to  this  state  and 
sold  in  violation  of  its  statutes.  New  Hampshire  cannot  prohibit 
the  sale  of  liquor  in  other  states,  but  it  can  punish,  as  it  does  by 
this  statute,  acts  done  in  this  state  with  the  purpose  of  facilitating 
sales  of  intoxicating  liquors  in  other  states  to  be  transported  to 
this  state  and  to  be  illegally  sold  here,  in  contravention  of  our 
policy  and  to  the  injury  of  our  citizens.  The  statute  was  intended 
to  make  such  sales  and  transportation  difficult,  if  not  impossible, 
by  subjectmg  those  who  violate  its  provisions  to  the  penalty  of 
fine  or  imprisonment.  Where  a  statute  provides  a  penalty  for  an 
act,  this  is  a  prohibition  of  the  act.  In  Bartlctt  v.  Vinor,  Garth. 
252 — S.  C.  Skin.  322,  Moll,  G.  J.,  said, — "Every  contract  made 
for  or  about  any  matter  or  thing  which  is  prohibited  or  made 
unlawful  bv  any  statute  is  a  void  contract,  though  the  statute  does 
not  mention  that  it  shall  not  be  so,  but  only  inflicts  a  penalty  on 
the  offenders,  because  a  penalty  implies  a  prohibition,  though 
there  are  no  prohibitory  words  in  the  statute."  Accordingl}  it  is 
everywhere  held  that  wherever  an  indictment  can  be  sustained 
for  the  illegal  sale  of  liquors  or  other  goods,  there  the  price 
caimot  be  recovered  (Bliss  v.  Brninnrd,  41  N.  H.  256,  268,  Smith 
V.  Godfrey,  28  N.  H.  384,  Calditrell  v.  JVentworth,  14  N.  H.  431, 
Lewis  v.  Welch,  14  N.  H.  294,  Pray  v.  Burhank,  10  N.  H.  377)  ; 
and  if  this  was  a  New  Ham.pshire  contract  the  plaintiffs  could 
not  recover.  The  law  does  not  help  the  seller  to  recover  the 
orice  of  eoods,  the  sale  of  which  it  interdicts.  The  reason  of  rhis 
rule  applies  in  this  case.  Although  this  contract  was  executed  in 
Massachusetts,  it  had  its  inception  in  this  state,  in  direct  violation 


CONTRACTS.  415 

of  our  laws.  Orders  for  these  l-qours  were  solicited  and  taken 
here  by  the  i^laintiffs'  agent,  sent  here  for  that  purpose ;  were 
transmitted  by  him  to  the  ])laintiffs ;  were  accepted  by  them,  and 
became  the  basis  of  the  contract  which  they  seek  to  enforce  in 
this  state.  The  orders  are  evidence  for  the  plaintiffs  as  to  price, 
quantity,  and  kinds  of  liquors  purchased,  as  well  as  of  an  offer 
by  the  defendant  to  purchase,  if,  indeed,  it  is  not  true  that  the 
plaintiffs  cannot  prove  their  case  without  founding  it  upon  the 
orders.  Both  the  soliciting  and  the  taking  of  the  orders  was  an 
indictable  offence,  in  which  the  agent  was  principal.  The  inciting, 
encouraging,  and  aiding  another  to  commit  a  misdemeanor  is 
itself  a  misdemeanor.  Russ.  on  Crimes,  46,  47.  The  plaintiffs 
stand  precisely  as  they  would  if  they,  instead  of  their  agent,  had 
solicited  and  taken  the  orders.  G.  L.,  c.  284,  s.  7.  Having  aided, 
abetted,  procured,  and  hired  their  agent  to  violate  our  laws  by 
soliciting  and  taking  orders  for  the  very  liquors  embraced  in  this 
contract,  they  cannot  with  any  grace  invoke  the  remedy  afforded 
by  our  laws  to  recover  the  price.  No  rule  of  comity  requires  us 
to  enforce  in  favor  of  a  non-resident  a  contract  which  had  its 
origin  in  the  open  violation  of  law,  and  which  would  not  be 
enforced  in  favor  of  our  own  citizens,  especially  when  it  is 
offensive  to  our  morals,  opposed  to  our  policy,  and  injurious  to 
our  citizens.  Its  enforcement  would  tend  to  nullify  the  statute 
which  tlie  plaintiffs  have  caused  to  be  violated.  The  law  which 
prohibits  an  end,  will  not  lend  its  aid  in  promoting  the  means 
designed  to  carry  it  into  efi'ect.  Tt  does  not  promote  in  one  form 
that  which  it  prohibits  in  another.  White  v.  Buss.  3  Cu sh.  448, 
450.  The  opinion  in  Hill  v.  Sf'car  (p.  264)  concedes  that  there 
could  be  no  recovery  if  the  plaintiffs  had  actively  participated  in 
an  illegal  act  in  effecting  the  sale,  and  is  put  upon  the  ground  that 
Stewart,  their  agent,  did  not  advise,  request,  or  encourage  any 
violation  of  the  laws  of  this  state. 

In  Bliss  V.  Brainard.  41  N.  H.  256,  268,  we  said, — "Where  a 
contract  grov.s  immediately  out  of,  and  is  connected  with,  an 
illegal  or  immoral  act.  a  court  of  justice  will  not  lend  its  aid  to 
enforce  it.  So,  if  tiie  contract  be  in  part  connected  with  die 
illegal  consideration,  but  growing  immediately  out  of  it,  though  it 
be  in  fact  a  new  and  separate  contract,  it  is  equally  tainted  by  it." 
In  that  case  the  plaintiff  sought  to  recover  for  the  value  of  the 
casks  in  which  the  liquors  were  contained,  and  for  the  freight  and 
cartage  of  the  liquors,  the  sale  of  the  liquors  being  unlawful. 
Foivlcr,  J.,  said, — "Aside,  therefore,  from  the  positive  provisions 
of  the  Massachusetts  statute,  withdrawing  all  protection    from 


416  PRIVATE    INTERNATIONAL    LAW. 

vessels  and  casks  when  employed  as  the  instnimenls  for  perpetu- 
ating a  violation  of  positive  law,  we  think  the  sale  of  the  casks 
was  so  tainted  with  the  illegality  of  the  sale  of  the  liquors,  so 
much  a  part  of  the  res  gestae  of  the  main  illegal  and  criminal 
transaction,  and  so  much  the  mere  instrument  whereby  it  was 
accomplished,  that  no  action  can  be  maintained  to  recover  their 
price."  For  analogous  reasons  the  plaintiffs  in  this  case  cannot 
recover.  Although  this  is  a  ATa^sachusetts  contract,  valid  in  that 
state,  it  is  so  tainted  by  the  plaintiffs"  illegal  conduct  in  soliciting, 
taking,  and  transmitting  orders  in  violation  of  the  statute,  that 
comity  will  not  extend  to  them  the  remedy  afforded  by  cur  laws. 
The  taking  of  such  orders  tends  directly  to  encourage  the  illegal 
sale  of  liquors  ir;  this  state,  and,  being  prohibited,  it  follows  that 
an  action  to  recover  the  price  of  liquors  sold  and  delivered  pursu- 
ant to  orders  so  solicited  cannot  be  maintained  in  this  state, 
although  the  sale  of  intoxicating  liquors  in  the  state  or  country 
where  thev  are  sold  anci  delivered  is  not  illegal.  Dunbar  v. 
Loeke,  62  N.  H.— 

Judgiiieiif  for  the  defendant. 

STAPLES   V.   KNOTT,    1891. 
[128  N.  Y    403.] 

Gray,  J.  The  prontissory  note  in  suit  bears  date  at  Wash- 
ington, D.  C.  April  5,  1889:  was  made  payable  at  a  bank  in 
Watertown.  N.  Y.,  and  carried  interest  at  the  rate  of  seven  per 
cent  per  annum.  The  appellant  was  indorser  upon  it,  and  defends 
on  the  ground  of  usury.  If  the  contract  of  the  parties,  which  is 
evidenced  by  this  note,  was  governed  by  the  laws  of  this  state, 
the  defense  should  have  prevailed ;  but  if  made  under  the  laws  of 
the  District  of  Columbia  the  judgment  was  right  and  should  be 
sustained. 

The  note  was  given  in  renewal  of  a  balance  due  upon  a  prior 
note,  made  by  and  between  the  same  parties,  which  bore  date  at 
Washington,  D.  C,  April  5.  1888;  was  payable  one  year  after 
date  at  a  bank  in  Washington ;  bore  the  same  rate  of  interest  and 
was  similarlv  indorsed.  Some  payments  were  made  on  account 
of  the  principal,  but,  before  its  maturity,  the  maker  requested  of 
plaintiff,  a  resident  of  Washington,  by  letter,  to  renews  for  the  bal- 
ance remaining  due.  Failing  to  receive  any  reply,  he  went  on  to 
Washington,  and  there  prevailed  upon  the  plaintiff  to  agree  to 
take  a  new  note  for  his  debt.  This  note  was  then  drawn  by  the 
plaintiff  and  handed  to  the  maker  for  execution,  who  took  it  back 


CONTRACTS.  417 

to  his  home  in  Syracuse.  N.  Y.,  whtrc  his  and  the  appellant's  sip- 
natures  were  affixed,  as  maker  and  indorser  respectively.  It  liad 
been  af::rccd  with  the  plamtiff  that,  upon  this  new  note  being 
returned  to  lum,  he  would  send  back  the  orip^inal  note,  and  the 
appellant  himself  mailed  the  renewal  note  to  the  plaintiff  in 
Washington. 

These  facts,  which  were  not  disputed,  should  make  it  per- 
fectly obvious  that  there  was  here  every  essential  to  a  valid 
contract  under  the  laws  of  the  ])laintifif's  domicile,  and  the  only 
accompaniment  lacking  to  a  full  local  coloring  was  the  foreign 
place  named  for  payment.  For  the  affixing  of  the  signatures  to 
the  note  by  the  maker  and  the  indorser,  however  important  as 
acts.  was.  yet,  but  a  detail  in  the  performance  and  execution  of 
the  contract  which  had  been  agreed  upon  with  the  plaintiff.  But 
naming  a  New  York  bank  as  the  place  where  the  maker  would 
provide  for  the  oayment  of  the  note,  did  not  characterize  the  con- 
tract in  one  way  or  the  other.  That  arrangement  was  one  simply 
for  the  convenience  of  the  maker.  It  could  have  no  peculiar 
efTect.  The  transactions,  which  resulted  in  an  agreement  to 
extend  the  time  for  the  payment  of  the  debt  and  to  accept  a  new 
note,  took  place  wholly  in  the  District  of  Columbia,  and  what  else 
was  enacted  in  the  matter  elsewhere  neither  added  to  nor  altered 
the  agreement  of  the  parties.  Though  the  engagement  of  the 
indorser,  in  a  sense,  was  independent  of  that  of  the  maker,  that 
proposition  is  one  which  does  not  affect  the  local  character  of  the 
contract,  but  which  sim.ply  concerns  the  question  of  the  enforce- 
ment of  the  indorser's  liability.  Whatever  the  previous  knowl- 
edge of  the  appellant,  as  to  the  negotiations  and  the  agreement 
for  a  renewal  of  the  promise  to  pay  between  the  maker  of  the  old 
note  and  the  plaintiff,  the  question  is  without  importance.  When 
he  indorsed  the  note,  which  had  been  prepared  and  was  brought 
to  him.  and  sent  it  through  the  mail  to  the  plaintiff,  his  engage- 
ment was  with  respect  to  a  contract  validly  made  according  to 
the  laws  of  the  District  of  Cohmilna.  and  when  the  note  was 
received  liy  the  plaintifl'  the  transaction  was  then  consummated  in 
that  place.  In  Lcc  v.  ScUeck  (33  N.  Y.  615)  it  was  said,  with 
respect  to  an  indorsement  in  Illinois  of  a  note  made  in  \ew  York, 
that  the  fact  of  the  indorser  writing  his  name  elsewhere  was  of 
no  moment.  Upon  delivery  by  his  agent  to  the  plaintiffs  in  Xew 
York,  it  became  operative  as  a  mutual  contract. 

The  agreement,  which  was  made  in  Washington  for  the 
giving  of  Lhe  promissory  note  in  question,  was  the  forbearance  of 
a  debt  already  due,  upon  which  the  appellant  was  liable ;  and  the 
27 


418  PRIVATE    INTERNATIONAL    LAW. 

renewal  of  his  engagement  as  indcrser  upon  tlie  note,  without  any 
qualification  of  his  contract  of  indorsement,  was  in  fact  an  act  in 
ratification  and  execution  of  the  previous  .agreement.  That 
agreement  between  the  plaintifif  and  the  maker  in  Washington 
took  its  concrete  legal  form  in  a  note,  prepared  there  by  the 
plaintiff,  with  a  rate  of  interest  sanctioned  by  the  laws  of  his 
domicile,  adopted  by  the  appellant  by  indorsement  in  blank,  and 
made  operative  as  a  mutual  contract  by  delivery  to  plaintiff  in 
Washmgton  through  the  mails. 

For  the  court  to  hold,  because  the  note  was  not  actually 
signed  and  indorsed  in  the  District  of  Columbia,  where  the  agree- 
ment, it  evidenced,  was  made,  or  because  it  was  made  payable  in 
another  state,  that  the  contract  was  void  as  contravening  the 
usury  laws  of  the  place  of  signature  and  of  payment,  would  be 
mtolerable  and  against  decisions  of  this  court.  (Wayne  Co.  Sav. 
Bank  V.  Lozv,  8t  N.  Y.  566:  '.Vcstcrn  T.  &  C.  Co.  v.  Kildcriiousc, 
87  id.  430;  Sheldon  v.  Ha.rtun,  91  id.  124.) 

I  think  the  plaintiff  was  entitled  to  recover,  as  upon  a  con- 
tract made  under  the  government  of  the  laws  of  the  District  of 
Columbia  and,  therefore,  valid  and  enforceable  in  any  state. 

The  judgment  should  be  affirmed,  with  costs. 

All  concur.  Juds[nienf  affirmed. 


"i^' 


MILLIKEN  V.  PRATT.  1878. 
[125  Mass.  374.] 

Contract  to  recover  $500  and  interest  from  January  6, 
J872.  Writ  dated  June  30,  1875.  The  case  was  submitted  to  ihe 
Superior  Court  on  agreed  facts,  in  substance  as  follows : 

The  plaintiffs  are  partners  doing  business  in  Portland,  Maine, 
under  the  firm  name  of  Deering,  Milliken  &  Co.  The  defendant  is 
and  has  been  since  1850,  the  wife  of  Daniel  Pratt,  and  both 
have  always  resided  in  Massachusetts.  In  1870.  Daniel,  who 
was  then  doing  business  in  Massachusetts,  applied  to  the  plain- 
tiffs at  Portland  for  credit,  and  they  required  of  him,  as  a  con- 
dition of  granting  the  same,  a  guaranty  from  the  defendant  to 
the  amount  of  five  hundred  dollars,  and  accordingly  he  procured 
from  his  wdfe  the  following  instrument : 

"Portland,  January  29,  1870.  In  consideration  of  one  dollar 
paid  by  Deering,  Milliken  &  Co.,  receipt  of  which  is  hereby 
acknowledged,  I  guarantee  the  payment  to  them  by  Daniel  Pratt 
of  the  sum  of  five  hundred  dollars,  from  time  to  time  as  he  may 
want — this  to  be  a  continuing  guaranty.     Sarah  A.  Pratt." 


CONTRACTS.  419 

This  instrument  was  executed  by  the  defendant  two  or  three 
days  after  its  date,  at  her  home  in  Massachusetts,  and  there 
deHvered  by  her  to  her  husband,  who  sent  it  by  mail  from  Massa- 
chusetts to  the  plaintiffs  in  Portland ;  and  the  plaintiffs  received 
it  from  the  postofifice  in  Portland  early  in  February,  1870. 

The  plaintiffs  subsequently  sold  and  delivered  goods  to 
Daniel  from  time  to  time  until  October  7,  1871,  and  charged  the 
same  to  him,  and.  if  competent,  it  may  be  taken  to  be  true,  that 
in  so  doing  they  relied  upon  the  guaranty.  Between  February, 
1870,  and  September  i,  187 1.  they  sold  and  delivered  goods  to 
him  on  credit  to  an  amount  largely  exceeding  $500,  which  were 
fully  settled  and  paid  for  by  him.  This  action  is  brought  for 
goods  sold  from  September  i.  1871,  to  October  7,  1871,  inclusive, 
amounting  to  $860.12,  upon  which  he  paid  $300,  leaving  a  bal- 
ance due  of  $560.12.  The  one  dollar  mentioned  in  the  guaranty 
was  not  paid,  and  the  only  consideration  moving  to  the  defend- 
ant therefor  was  the  giving  of  credit  by  the  plaintiffs  to  her  hus- 
band. Some  of  the  goods  were  selected  personally  by  Daniel  at 
the  plaintiffs'  store  in  Portland,  others  were  ordered  by  letters 
mailed  by  Daniel  from  Massachusetts  to  the  plaintiffs  at  Port- 
land, and  all  were  sent  by  the  plaintiffs  by  express  from  Portland 
to  Daniel  in  Massachusetts,  who  paid  all  express  charges.  The 
parties  were  cognizant  of  the  facts. 

By  a  statute  of  Maine,  duly  enacted  and  approved  in  1866. 
it  is  enacted  that  "the  contracts  of  any  married  woman,  made  for 
any  lawful  purpose,  shall  be  valid  and  binding,  and  may  be 
enforced  in  the  same  manner  as  if  she  were  sole."  The  statutes 
and  the  decisions  of  the  court  of  Maine  may  be  referred  to. 

Payment  was  duly  demanded  of  the  defendant  before  the 
date  of  the  writ,  and  was  refu.sed  by  her. 

The  Superior  Court  ordered  judgment  for  the  defendant ; 
and  the  plaintiffs  appealed  to  this  court. 

Gray,  C.  J.  The  general  rule  is  that  the  validity  of  a  con- 
tract is  to  be  determined  by  the  law  of  the  state  in  which  it  'S 
made ;  if  it  is-  valid  there,  it  is  deemed  valid  everywhere,  and  will 
sustain  an  action  in  the  courts  of  a  state  whose  laws  do  not  permit 
such  a  contract.  Scmidcr  v.  Union  National  Bank,  91  U.  S.  40(1. 
Even  a  contract  expressly  prohibited  by  the  statutes  (;if  the  state 
in  which  the  suit  is  brought,  if  not  in  itself  immoral,  is  not  neces- 
sarily nor  usually  deemed  so  invalid  that  the  comity  of  the  state, 
as  administered  by  its  courts,  will  refuse  to  entertain  an  action 
on  such  a  contract  made  bv  one  of  its  own  citizens  abroad  in  a 


420  PRIVATE    INTERNATIONAL    LAW. 

State  the  laws  of  which  permit  it.     Greenzvood  v.  Curtis,  6  Mass. 
358.     M'Intyre  v.  Parks,  3  Met.  207. 

If  the  contract  is  completed  in  another  state,  it  makes  no 
difference  in  principle  whether  the  citizen  of  this  state  goes  in 
person,  or  sends  an  agent,  or  writes  a  letter,  across  the  boundary 
line  between  the  two  states.  As  was  said  by  Lord  Lyndhurst, 
"If  I,  residing  in  England,  send  down  my  agent  to  Scotland,  and 
he  makes  contracts  for  me  there,  it  is  the  same  as  if  I  myself 
went  there  and  made  them."  Pattison  v.  Mills,  1  Dow  &  CI.  342, 
363.  So  if  a  person  residing  in  this  state  signs  and  transmits, 
either  by  a  messenger  or  through  the  postoffice.  to  a  person  in 
another  state,  a  written  contract,  which  requires  no  special  forms 
or  solemnities  in  its  execution,  and  no  signature  of  the  person 
to  whom  it  is  addressed,  and  is  assented  to  and  acted  on  by  him 
there,  the  contract  is  made  there,  just  as  if  the  writer  personally 
took  the  executed  contract  into  the  other  state,  or  wrote  and 
signed  it  there;  and  it  is  no  objection  to  the  maintenance  of  an 
action  thereon  here,  that  such  a  contract  is  prohibited  by  the  law 
of  this  Commonwealth.     M'Intyre  v.  Parks,  above  cited. 

The  guaranty,  bearing  date  of  Portland,  in  the  State  of 
Maine,  was  executed  by  the  defandant,  a  married  woman,  having 
her  home  in  this  Commonwealth,  as  collateral  security  for  the 
liability  of  her  husband  for  goods  sold  by  the  plaintiffs  to  him, 
and  was  sent  by  her  through  bim  by  mail  to  the  plaintiffs  at  Port- 
land. The  sales  of  the  goods  ordered  by  him  from  the  plaintiffs 
at  Portland,  and  there  delivered  by  them  to  him  in  person,  or  to 
a  carrier  for  him,  were  made  in  the  State  of  Maine.  Orcutt  v. 
Nelson,  i  Gray,  536.  Kline  v.  Baker,  99  Mass.  253.  The  con- 
tract between  the  defendanr  and  the  plaintiffs  was  complete  when 
the  guaranty  had  been  received  and  acted  on  by  them  at  Portland, 
and  not  before.  Jordan  v.  Dobbins,  122  Mass.  168.  It  must 
therefore  be  treated  as  made  and  to  he  performed  in  the  State  of 
Maine. 

The  law  of  Maine  authorized  a  married  woman  to  bind 
herself  by  any  contract  as  if  she  were  unmarried.  St.  of  Maine 
of  1866,  c.  52.  Mayo  v.  Hutchinson,  57  Maine,  546.  The  law 
of  Massachusetts,  as  then  existing,  did  not  allow  her  to  enter  into 
a  contract  as  surety  or  for  the  accommodation  of  her  husband  or 
of  any  third  person.  Gen.  Sts.  c.  108,  §  3.  Nourse  v.  Henshaw, 
123  Mass.  96.  Since  the  making  of  the  contract  sued  on,  and 
before  the  bringing  of  this  action,  the  law  of  this  Commonwealth 
has  been  changed,  so  as  to  enable  married  women  to  make  such 


CONTRACTS. 


421 


contracts.     St.   1874,  c.  184.     Major  v.  Holmes,   124  Mass.   108. 
Kcmvorthy  v.  Sawyer,  ante,  28. 

The  question  therefore  is,  whether  a  contract  made  in  anotlier 
state  by  a  married  woman  domiciled  here,  which  a  married 
woman  was  not  at  the  time  capable' of  making  under  the  law  of 
this  Commonwealth,  but  was  then  allowed  by  the  law  of  that  state 
to  make,  and  which  she  could  now  lawfully  make  in  this  Common- 
wealth, will  sustain  an  action  against  her  in  our  couj-ts. 

It  has  been  often  stated  by  commentators  that  the  law  of  the 
domicd,  regulating  the  capacity  of  a  person,  accompanies  and 
governs  the  person  everywhere.  But  this  statement,  in  modern 
times  at  least,  is  subject  to  many  qualifications ;  and  the  opinions 
of  foreign  jurists  upon  the  subject,  the  principal  of  which  are 
collected  in  the  treatises  of  Mr.  Justice  Story  and  Dr.  Francis 
Wharton  on  the  Conflict  of  Laws,  are  too  varying  and  contra- 
dictory to  control  the  general  current  of  the  English  and  Ameri- 
can authorities  in  favor  of  holding  that  a  contract,  which  by  the 
law  of  the  place  is  recognized  as  lawfully  made  by  a  capable 
person,  is  valid  everywhere,  although  the  person  would  not, 
under  the  law  of  his  domicil,  be  deemed  capable  of  making  it. 

Two  cases  in  the  time  of  Lord  Hardwicke  have  been  some- 
times supposed  to  sustain  the  opposite  view.  The  first  is  Ex 
parte  Lcivis,  i  V'es.  Sen.  298,  decided  in  the  Court  of  Chancery 
in  1/49,  in  which  a  petition,  under  the  St.  of  4  Geo.  IL  c.  10.  that 
a  lunatic  heir  of  a  mortgagee  might  be  directed  to  convey  to  the 
mortgagor,  was  granted  by  Lord  Hardwicke,  on  the  ground  of 
"there  having  been  a  proceeding  before  a  proper  jurisdiction,  the 
Senate  of  Hamburgh,  where  he  resided,  upon  which  he  was 
found  ;/(';;  compos,  and  a  curator  or  guardian  appointed  for  him 
and  iiis  affairs,  which  proceeding  the  court  was  obliged  to  take 
notice  of."  But  the  foreign  adjudication  was  thus  taken  notice 
of  as  qompetent  evirlence  of  the  lunacy  only ;  and  that  the 
authority  of  the  foreign  guardian  was  not  recognized  as  extend- 
ing to  England  is  evident  from  the  fact  that  the  conveyance 
prayed  for  and  ordered  was  from  the  lunatic  himself.  The  other 
is  ilorriso>i's  case,  in  the  House  of  Lords  in  1750,  for  a  long 
time  ])rincinally  known  in  England  and  America  by  the  imperfect 
and  comhcting  statements  of  counsel  ari^ueiido  in  Sill  v.  /(  ors- 
ivick,  I  H.  Bl.  677,  682;  but  in  which,  as  the  Scotch  books  of 
reports  show,  the  decision  really  was  that  a  committee,  appointed 
in  England,  of  a  lunatic  residing  there,  could  not  sue  in  Scotlainl 
upon  a  debt  due  him,  but  that,  upon  obtaining  a  power  of  attor- 


422  PRIVATE    INTERNATIONAL    LAW. 

ney  from  the  lunatic,  they  might  maintain  a  suit  in  Scotland  in 
his  name ;  and  Lord  Hardwicke  said  that  the  law  would  be  the 
same  in  England — evidently  meaning,  as  appears  by  his  own 
statement  afterwards,  that  the  same  rule  would  prevail  in  Eng- 
land in  the  case  of  a  foreigner  who  had  been  declared  a  lunatic, 
and  as  such  put  imder  guardianship  in  the  country  of  his  domicil. 
Morrison's  Diet.  Dec.  4595.  i  Cr.  &  Stew.  454,  459.  Thome 
V.  Watkins,  2  Ves.  Sen.  35,  37.  Both  those  cases,  therefore, 
rightly  understood,  are  in  exact  accordance  with  the  later  deci- 
sions, by  which  it  is  now  settled  in  Great  Britain  and  in  the 
United  States,  that  the  appointment  of  a  guardian  of  an  infant  or 
lunatic  in  one  state  or  country  gives  him  no  authority  and  has 
no  effect  in  another,  except  so  far  as  it  may  influence  the  discre- 
tion of  the  courts  of  the  latter,  in  the  exercise  of  their  own  inde- 
pendent jurisdiction,  to  appoint  the  same  person  guardian,  or  to 
decree  the  custody  of  the  ward  to  him.  Ex  parte  Watkins,  2  Ves. 
Sen.  470.  In  re  HGustoun,  i  Russ.  312.  Johnson  v.  Beattie, 
10  G.  &  Fin.  42.  Stuart  v.  Biite,  9  H.  L.  Cas.  440;  5".  C.  4  Macq. 
I.  Nugent  V.  Vetzera,  L.  R.  2  Eq.  704.  IVoodzvorth  v.  Spring, 
4  Allen,  321.     Story  Confl.  §  499. 

Lord  Eldon,  when  Chief  Justice  of  the  Common  Pleas,  and 
Chief  Justice  Kent  and  his  associates  in  the  Supreme  Court  of 
New  York,  held  that  the  question  whether  an  infant  was  liable 
to  an  action  in  the  courts  of  his  domicil,  upon  a  contract  made  by 
him  in  a  foreign  country,  depended  upon  the  question  whether 
by  the  law  of  that  country  such  a  contract  bound  an  infant. 
Male  V.  Roberts,  3  Esp.  163.  Thompson  v.  Ketcham,  8  Johns. 
189. 

Mr.  Westlake,  who  wrote  in  1858,  after  citing  the  decision 
of  Lord  Eldon,  well  observed,  "That  there  is  not  more  authority 
on  the  subject  may  be  referred  to  its  not  having  been  questioned ;" 
and  summed  up  the  law  of  England  thus :  "While  the  .English 
lav/  remains  as  it  is,  it  must,  on  principle,  be  taken  as  exclud- 
ing, in  the  case  of  transactions  having  their  seat  here,  not  only 
a  foreign  age  of  majority,  but  also  all  foreign  determination  of 
status  or  capacity,  whether  made  by  law  or  by  judicial  act,  since 
no  difference  can  be  established  between  the  cases,  nor  does  any 
exist  on  the  continent."  "The  validity  of  a  contract  made  out 
of  England,  with  regard  to  the  personal  capacity  of  the  con- 
tractor, will  be  referred  in  our  courts  to  the  lex  loci  contractus; 
that  is,  not  to  its  particular  provisions  on  the  capacity  of  its 
domiciled  subjects,  but  in  this  sense,  that,  if  good  where  made, 


CON  IKACTS. 


423 


the  contract  will  be  held  good  here,  and  conversely."     Westlake's 
Private  International  Law,  §§  401,  402,  404. 

In  a  recent  case,  Lord  Romilly,  M.  R.,  held  that  a  legacy 
bequeathed  by  one  domiciled  in  England  to  a  boy  domiciled  with 
his  father  in  Hamburgh,  by  the  law  of  which  boys  do  not  become 
of  age  until  twenty-two  and  the  father  is  entitled  as  guardian  to 
receive  a  legacy  bequeathed  to  an  infant,  might  be  paid  to  the 
bov  at  his  coming  of  age  by  the  law  of  England,  although  still  a 
minor  by  the  law  of  his  domicil.  and  in  the  meanwhile  must  be 
dealt  with  as  an  infant's  legacy.  In  re  Hcllmann's  Will,  L.  R. 
2  Eq.  363. 

The  Supreme  Court  of  Louisiana,  in  two  cases  which  have 
long  been  considered  leading  authorities,  strongly  asserted  the 
doctrine  that  a  person  was  bound  by  a  contract  which  he  was 
capable  by  the  law  of  the  place,  though  not  by  the  law  of  his 
own  domicil,  of  making;  as,  for  instance,  in  the  case  of  a  con- 
tract made  by  a  person  over  twenty-one  and  under  twenty-five 
years  of  age,  in  a  state  whose  laws  authorized  contracts  to  be 
made  at  twenty-one,  whereas  by  the  laws  of  his  domicil  he  was 
incapable  of  contracting  under  twenty-five.  Baldunn  v.  Gray, 
16  Martin.  192.  193.  Saul  v.  His  Creditors,  17  Martin.  569,  597. 
The  same  doctrine  was  recognized  as  well  settled  in  Andrezvs  v. 
His  Creditors,  11  Louisiana,  464,  476. 

In  other  cases  of  less  note  in  that  state,  the  question  of  per- 
sonal capacity  was  indeed  spoken  of  as  governed  by  the  law  of 
the  domicil.  '  Lc  Breton  v.  Nouchet,  3  ^Martin,  60.  70.  Barrcra 
V.  Alpiientc,  18  Martin,  69,  70.  Gamier  v.  Poydras,  13  Louis- 
iana. 177,  182.  But  in  none  of  them  was  the  statement  neces- 
sary to  the  decision.  In  Lc  Breton  v.  Nouchet,  the  point  ad- 
judged was,  that  where  a  man  and  woman  domiciled  in  Louisiana 
(by  the  law  of  which  the  wife  retains  her  separate  property) 
were  married,  with  the  intention  of  returning  to  Louisiana,  in 
the  Mississippi  Territory  (where  the  rule  of  the  common  law- 
prevailed,  by  which  the  wife's  personal  property  became  her 
husband's),  the  law  of  Louisiana,  in  which  the  parties  intended 
to  continue  to  reside,  governed  their  rights  in  the  wife's  prop- 
ertv;  and  the  further  expression  of  an  opinion  that  the  rule 
would  be  the  same  if  the  parties  intended  to  remain  in  the  Miss- 
issippi Territory  was  purely  obiter  dictum,  and  can  hardly  be 
reconciled  with  later  decisions  of  the  same  court.  Gale  v.  Davis, 
4  Martin,  64>  Saul  v.  His  Creditors,  17  Martin.  5(x).  See  also 
Read  V.  Earle,   12  (iray.  427,.     In  Barrcra  v.  Alpucntc,  the  case 


424  PRIVATE    INTERNATIONAL    LAW. 

was  discussed  in  the  opinion  upon  the  hypothesis  that  the  capac- 
ity to  receive  a  legacy  was  governed  by  the  law  of  the  domicil ; 
but  the  same  result  would  have  followed  from  holding  that  it 
was  governed  by  the  law  of  the  place  where  the  right  accrued 
and  was  sought  to  be  enforced.  In  Gamier  v.  Poydras,  the  de- 
cision turned  on  the  validity  of  a  power  of  attorney  executed  and 
a  judicial  authorization  given  in  France,  where  the  husband  and 
wife  had  always  resided. 

In  Greenwood  v.  Curtis,  Chief  Justice  Parsons  said,  "By  the 
common  law,  upon  principles  of  national  comity,  a  contract  made 
in  a  foreign  place,  and  to  be  there  executed,  if  valid  by  the  laws 
of  that  place,  may  be  a  legitimate  ground  of  action  in  the  courts 
of  this  stale ;  although  such  contract  may  not  be  valid  by  our 
laws,  or  even  may  be  prohibited  to  our  citizens ;"  and  that  the 
Chief  Justice  considered  this  rule  as  extending  to  questions  of 
capacity  is  evident  from  his  subsequent  illustration  of  a  marriage 
contracted  abroad  betw^een  persons  prohibited  to  intermarry  by 
the  law  of  their  domicil.  6  Mass.  377-379.  The  validity  of  such 
marriages  (except  in  case  of  polygamy,  or  of  marriages  incestu- 
ous according  to  the  general  opinion  of  Christendom)  has  been 
repeatedlv  affirmed  in  this  Commonwealth.  Medtvay  v.  Need- 
ham,  16  Mass.  157.  Sutton  v.  Warren,  10  Met.  451.  Common- 
wealth V.  Lane,  113  IVlass.  458. 

The  recent  decision  in  Sottoniayor  v.  De  Barros,  3  P.  D.  i, 
by  which  Lords  Jtistices  James,  Baggallay  and  Cotton,  without 
referring  to  any  of  the  cases  that  we  have  cited,  and  reversing 
the  judgment  of  Sir  Robert  Phillimore  in  2  P.  D.  81,  held  that  a 
marriage  in  England  between  first  cousins,  Portuguese  subjects, 
resident  in  England,  who  by  the  law  of  Portugal  were  incapable 
of  intermarr_\ing  except  by  a  Papal  dispensation,  was  therefore 
null  and  void  in  England,  is  utterly  opposed  to  our  law ;  and 
consequently  the  diehini  of  Lord  Justice  Cotton,  "It  is  a  well- 
recognized  principle  of  law  that  the  question  of  personal  capacity 
to  enter  into  any  contract  is  to  be  decided  by  the  law  of  domicil," 
is  entitled  to  little  weight  here. 

Tt  is  true  that  tliere  are  reasons  of  public  policy  for  upholding 
the  validitv  of  marriages,  that  are  not  applicable  to  ordinary 
contracts;  but  a  greater  disregard  of  the  lex  doniicilii  can  hardly 
be  suggested,  than  in  the  recognition  of  the  validity  of  a  mar- 
riage contracted  in  another  state,  which  is  not  authorized  by  the 
law  of  the  domicil,  and  which  permanently  affects  the  relations 
and  the  ricrhts  of  two  citizens  and  of  others  to  be  born. 


CONTRACTS.  425 

Mr.  Justice  Story,  in  his  Commentaries  on  the  Conflict  of 
Laws,  after  elaborate  consideration  of  the  authorities,  arrives  at 
the  conclusion  that  "in  regard  to  questions  of  minority  or  ma- 
jority, competency  or  incompetency  to  marry,  incapacities  in- 
cident to  coverture,  guardianship,  emancipation,  and  other  per- 
sonal qualities  and  disabilities,  the  law  of  the  domicil  of  birth,  or 
the  law  of  any  other  acquired  and  fixed  domicil,  is  not  generally 
to  govern,  but  the  lex  loci  contractus  aiit  actus,  the  law  of  the 
place  where  the  contract  is  made,  or  the  act  done ;"  or  as  he 
elsewhere  sums  it  up,  "although  foreign  jurists  generally  hold 
that  the  law  of  the  domicil  ought  to  govern  in  regard  to  the 
capacity  of  persons  to  contract ;  yet  the  common  law  holds  a 
different  doctrine,  namely,  that  the  lex  loci  contractus  is  to  gov- 
ern." Story  Confl.  §§  J03,  241.  So  Chancellor  Kent,  although 
in  some  passages  of  the  text  of  his  Commentaries  he  seems  to 
incline  to  the  doctrine  of  the  civilians,  yet  in  the  notes  after- 
wards added  unequivocally  concurs  in  the  conclusions  of  Mr.  Jus- 
tice Story.    2  Kent  Com.  233  note,  458.  459  &  note. 

In  Pearl  v.  Hansborough.  9  Humph.  426,  the  rule  was  carried 
so  far  as  to  hold  that  where  a  married  woman  domiciled  with  her 
husband  in  the  State  of  Mississipj)i.  by  the  law  of  which  a  pur- 
chase b}-  a  married  woman  was  valid  and  the  property  purchased 
wont  to  her  separate  use.  bought  personal  property  in  Tennessee, 
by  the  law  of  which  married  women  were  incapable  of  contract- 
ing, the  contract  of  purchase  was  void  and  could  not  be  enforced 
in  Tennessee.  Some  authorities,  on  the  other  hand,  would  up- 
hold a  contract  made  by  a  party  capable  by  the  law  of  his  dom- 
icil, though  incapable  by  the  law  of  the  place  of  the  contract. 
In  re  Hcllmann's  Will,  and  Saul  v.  His  Creditors,  above  cited. 
But  that  alternative  is  not  here  presented.  In  Hill  v.  Pine  River 
Bank,  45  N.  H.  300,  the  contract  was  made  in  the  state  of  the 
woman's  domicil,  so  that  the  question  before  us  did  not  arise  and 
was  not  considered. 

The  principal  reasons  on  which  continental  jurists  have 
maintained  that  personal  laws  of  the  domicil,  affecting  the  status 
and  cajiacitv  of  all  inhabitants  of  a  particular  class,  bind  them 
wherever  thev  may  go.  appear  to  have  been  that  each  state  has 
the  rightful  power  of  regulating  the  status  and  condition  of  its 
subjects,  and.  being  best  acquainted  with  the  circumstances  of 
climate,  race,  character,  manners  and  customs,  can  best  judge  at 
what  age  young  persons  may  begin  to  act  for  themselves,  and 
whether  and  how  far  married  women  may  act  independently  of 


426  PRIVATE    INTERNATIONAL    LAW. 

their  husbands ,  that  laws  Hmitino^  the  capacity  of  infants  or 
of  married  women  are  intended  for  their  protection,  and  cannot 
therefore  be  dispensed  with  by  their  agreement ;  that  all  civ- 
ilized states  recognize  the  incapacity  of  infants  and  married 
women ;  and  that  a  person,  dealing  with  either,  ordinarily  has 
notice,  by  the  apparent  age  or  sex,  that  the  person  is  likely  to 
be  of  a  class  whom  the  laws  protect,  and  is  thus  put  upon  inquiry 
how  far,  by  the  law  of  the  domicil  of  the  person,  the  protection 
extends. 

On  the  other  hand,  it  is  only  by  the  comity  of  other  states 
that  laws  can  operate  beyond  the  limit  of  the  state  that  makes 
them.  In  the  great  majority  of  cases,  especially  in  this  country, 
where  it  is  so  common  to  travel,  or  to  transact  business  through 
agents,  or  to  correspond  by  letter,  from  one  state  to  another,  it 
is  more  just,  as  well  as  more  convenient,  to  have  regard  to  the 
law  of  the  place  of  the  contract,  as  a  uniform  rule  operating  on 
all  contracts  of  the  same  kind,  and  which  the  contracting  parties 
may  be  presumed  to  have  in  contemplation  when  making  their 
contracts,  than  to  require  them  at  their  peril  to  know  the  domicil 
of  those  with  whom  thev  deal,  and  to  ascertain  the  law  of  that 
domicil,  however  remote,  which  in  many  cases  could  not  be  done 
without  such  delay  as  would  greatly  cripple  the  power  of  con- 
tracting abroad  at  all. 

As  the  law  of  another  state  can  neither  operate  nor  be  exe- 
cuted in  this  state  by  its  own  force,  but  only  by  the  comity  of 
this  state,  its  oj^eration  and  enforcement  here  may  be  restricted 
by  positive  prohibition  of  statute.  A  state  may  always  by  ex- 
press enactment  protect  itself  from  being  obliged  to  enforce  in 
its  courts  contracts  made  abroad  by  its  citizens,  which  are  not 
authorized  by  its  own  laws.  Under  the  French  code,  for  instance, 
which  enacts  that  the  laws  regulating  the  status  and  capacity  of 
persons  shall  bind  French  subjects,  even  when  living  in  a  foreign 
country,  a  French  court  cannot  enforce  a  contract  made  by  a 
Frenchman  abroad,  which  he  is  incapable  of  making  by  the  law 
of  France.     See  Westlake,  §§  399,  400. 

It  is  possible  also  that  in  a  state  where  the  common  law  pre- 
vailed in  full  force,  by  which  a  married  woman  was  deemed  in- 
capable of  binding  herself  by  any  contract  whatever,  it  might 
be  inferred  that  such  an  utter  incapacity,  lasting  throughout  the 
joint  lives  of  husband  and  wife,  must  be  considered  as  so  fixed 
by  the  settled  policy  of  the  state,  for  the  protection  of  its  own 
citizens,  that  it  could  not  be  held  l)v  the  courts  of  that  state  to 


CONTRACTS.  427 

yield  to  the  law  of  another  state  in  which  she  might  undertake 
to  contract. 

Ikit  it  is  not  true  at  the  present  day  that  all  civilized  states 
recognize  the  absolute  incapacity  of  married  women  to  make  con- 
tracts. The  tendency  of  modern  legislation  is  to  enlarge  their 
capacity  in  this  respect,  and  in  many  states  they  have  nearly  or 
quite  the  same  powers  as  if  unmarried.  In  Massachusetts,  even 
at  the  time  of  the  making  of  the  contract  in  question,  a  married 
woman  was  vested  by  statute  with  a  very  extensive  power  to 
carry  on  business  by  herself,  and  to  bind  herself  by  contracts 
with  regard  to  her  own  property,  business  and  earnings ;  and, 
before  the  bringing  of  the  present  action,  the  power  had  been 
extended  so  as  lo  include  the  making  of  all  kinds  of  contracts, 
with  any  person  but  her  husband,  as  if  she  were  unmarried. 
There  is  therefore  no  reason  of  public  policy  which  should  pre-  ,- 

vent  the  maintenance  of  this  action.  .       '  ///■A^"^ 

Judgment  for  the  plaintiffs     ,,{"■'' 

W^FLAGG  V.  BALDWIN,  1884.        '(J^^  '' 

[38  N.  J.  Eq.   219.J 

Magie,  J. 

The  bill  in  this  case  was  filed  for  the  foreclosure  of  a  mort- 
gage made  by  Jennie  M.  Flagg  and  William  L.  Flagg,  her  hus- 
band (who  are  the  appellants),  to  Abram  F.  Baldwin  (who  is  the 
respondent),  upon  lands  in  this  state,  to  secure  the  payment  of 
appellants'  bond.  The  bond  and  mortgage  were  dated  August 
26th,  1880.  The  bond  was  in  the  ordinary  form  of  a  money  obli- 
gation and  was  conditioned  for  the  payment  to  respondent  of 
$11,563.44,  with  interest,  on  demand.  The  mortgage  recited  that 
it  was  intended  to  secure  the  money  which  appellants  had  so 
bound  themselves  to  pay,  and  that  the  amount  of  $11,563.44  was 
made  up  of  $7,563.44,  which  was  therein  declared  to  be  then  due 
from  appellants  to  respondents,  and  of  $4,000  to  be  security  for 
future  advances. 

From  the  proofs  it  appears  that  the  sum  of  $7,563.44.  so  ad- 
mitted to  be  due  from  appellants  to  respondent,  was  made  up  of 
different  sums.  One  sum  represented  the  loss  which  had  been 
incurred  by  Mr.  Flagg  in  a  stock  speculation  which  had  been 
carried  on  by  him  and  one  Rijjley  with  respondent,  a  stock- 
broker in  New  York.  Another  sum  represented  losses  incurred 
by  Mr.  Flagg  in  a  like  speculation  carried  on  by  him  and  re- 
spondent in  joint  account.     Another  sum  represented  losses  in- 


428  PRIVATE    INTERNATIONAL    LAW. 

curred  in  a  like  speculation  originally  carried  on  by  Mr.  Flagg 
with  respondent  and  afterwards  transferred  to  and  carried  on  by 
Mrs.  Flagg  (under  the  control  and  management  of  her  husband) 
with  respondent.  The  losses  thus  incurred  were  the  result  of 
stock  dealings  for  these  respective  parties  upon  a  margin  some- 
times put  up  in  cash,  and  in  Mrs.  Flagg's  case  in  her  own  note, 
which  represented  her  margin. 

The  $4,000  of  future  advances  were  designed  and  intended 
as  a  margin  for  a  continuance  of  the  stock  speculation  of  Mrs. 
Flagg  to  be  carried  on  in  her  name  under  the  management  of 
her  husband  with  respondent,  and  the  advances  contemplated  by 
both  parties  were  such  as  would  cover  and  make  good  her  losses 
therein,  if  any. 

Respondent's  books  show  that  the  bond  and  mortgage  were 
credited  to  Mrs.  Flagg's  account  for  the  sum  of  $11,563.44,  and 
that  account  had  been  charged  with  the  previous  losses.  It  ap- 
pears further  that  the  speculative  stocks  carried  in  that  account 
have  all  been  closed  out  with  the  result  of  leaving  a  balance  in 
Mrs.  Flagg's  favor  of  $653.93.  Since  the  mortgage  entered  into 
the  account,  the  effect  is  that  there  is  due  thereon  the  sum  of 
$10,909.51.  with  interest,  and  its  foreclosure  and  the  sale  of  the 
mortgaged  premises  must  be  conceded  unless  some  of  the  de- 
fences are  sustained. 

The  main  defence  goes  to  the  validity  of  the  bond  and  mort- 
eaec  and  contests  them  on  the  ground  that  the  contracts  out  of 
which  they  arose  were  wagering  contracts  and  illegal  and  void, 
and  that  the  bond  and  mortgage  securing  an  indebtedness  arising 
solely  from  such  cause  are  tainted  with  the  same  illegality  and 
cannot  be  enforced.  > 

In  coming  to  the  consideration  of  the  question  thus  raised,  it 
is  obvious  that  it  is  important  to  determine  at  what  place  the 
contracts  contested  were  made.  For  if  they  are  New  jersey 
contracts  and  subject  to  our  law.  the  sole  question  is  whether 
they  are  such  contracts  as  are  declared  unlawful  by  the  "act  to 
prevent  gaming."  Rev.  p.  438.  While  if  they  are  contracts 
of  another  place,  it  must  be  preliminarily  determined  whether 
they  are  objectionable  by  the  law  of  the  place  of  contract;  or  if 
not,  whether  they  will  still  be  enforced  by  our  courts. 

The  evidence  seems  to  leave  no  room  for  doubt  that  the  con- 
tracts in  question  are  contracts  made  and  to  be  performed  in  the 
stale  of  New  York.  The  transactions  anterior  to  the  execution  of 
the  bond  and  mortgage  took  place  wholly  within  that  state.     By 


CONTRACTS.  429 

the  bonrl  and  mortp^aire  the  parties  averred  they  resided  in  that 
state.  The  mortf^ap^ec  (hd.  in  fact,  reside  there.  The  mortpjap^e 
was  acknowledg-ed  there.  Dehvery  of  tlie  papers  was  niacle,  and 
the  remaining  transactions  took  place  there.  Although  the  mort- 
gage afifected  lands  in  this  state,  the  above-stated  facts  estai)lish, 
according  to  a  long  litie  of  decisions,  that  the  contracts  were  New 
York  contracts.     Cotheal  v.  Blydcnhnrgh,  i  Hal.  Ch.   ij;  S.  C, 

1  Hal.  Ch.  (5?/.-  Pc  JVolf  v.  Johnson,  in  Wheat.  ?67;  Dolman 
V.  Cook,  I  McCart.  56:  Campion  v.  Killc,  i  McCart.  22g;  S.  C, 

2  McCart.  4/6:  Atzvatcr  v.  Walker,  i  C.  E.  Gr.  42. 

Where  contracts  of  a  particular  kind  are  forbidden  by  the  law 
of  the  state  in  which  they  arc  sought  to  be  enforced,  and  the 
party  seeking  to  enforce  them  relies  on  the  fact  that  they  were 
made  in  a  foreign  state  and  are  valid  contracts  by  the  lex  loci  con- 
tractus, it  has  been  held  elsewhere  that  he  is  bound  to  aver  and 
prove  those  facts.     Thatcher  v.  Morris,  ri  N.  Y.  4^7. 

But  the  rule  which  seems  to  have  been  established  in  this 
state  requires  one  who  defends  against  a  foreign  contract,  if  he 
relies  on  its  being  invalid  by  force  of  the  lev  loci  contractus,  to 
both  set  up  and  prove  the  foreign  law.  Campion  v.  Kille,  ubi 
supra;  Dolman  v.  Cook,  ubi  supra;  Uliler  v.  Scmplc^  5  Cr  E. 
Gr.  288. 

We  have,  then,  to  deal  with  transactions  which  took  place 
within  the  state  of  New  York  and  must  be  presumed  to  be 
governed  by  the  laws  of  that  state.  W^hatever  may  be  the  rule 
respecting  the  burden  of  setting  up  and  proving  the  law  of  the 
foreign  state  under  such  circumstances,  neither  appellants  nor 
respondent  have  furnished  in  their  pleadings  or  proofs  any  in- 
formation on  the  subject.  In  the  absence  of  proof  of  the  law  of 
another  state,  the  better  opinion  is  that,  at  least  with  respect  to 
states  comprised  in  the  territory  severed  from  England  by  the 
revolution,  the  presumption  is  that  the  common  law  prevails. 
White  V.  Knapp,  47  Barb.  5-/o.'  Stokes,  v.  Macken,  62  Barb. 
14^;  Holmes  v.  Broughton,  10  Wend.  7^;  Thurston  v.  Percival. 
I  Pick.  41  fi;  .Shepherd  v.  Nabors,  6  Ala.  6^1 ;  Walker  v.  Walker, 
41  Ala.  J55.'  Thompson  v.  Monro7v,  2  Cal.  go;  In^e  v.  .Murphy, 
10  Ala.  88');  N orris  v.  Harris,  75  Cal.  226;  Titus  v.  Scantling, 
4  Black f.  89;  Crouch  v.  Hall,  75  ///.  26:^:  Brown  v.  Pratt,  ?  Jones 
{N.  C.)  Eq.  202. 

By  the  common  law,  contracts  of  wager  and  similar  contracts 
were  not  objectionable  per  se.  They  were,  in  fact,  enforced  by 
the  courts  without  any  objection  on  the  score  of  being  dependent 


430  PRIVATE    INTERNATIONAL    LAW. 

on  a  chance  or  casualty.  Courts  did,  in  some  instances,  refuse 
to  enforce  such  contracts,  but  only  when  the  subject  of  the  wager 
was  objectionable,  as  tending  to  encourage  acts  contrary  to  sound 
morals  ( Gilbert  v.  Sykes,  i6  East  750)  ;  or  being  injurious  to  the 
feelings  or  interests  of  third  persons  (De  Costa  v.  Jones  Cozvp. 
72^)  •  or  against  public  policy  or  public  duty  {Atherfold  v.  Beard, 
2  T.  R.  6to;  Tappenden  v.  Randall,  2  B.  &  P.  462;  Shirley  v. 
Sankey,  2  P.  &  B.  1^0;  Hartley  v.  Rice,  10  East  22). 

It  has  not  been  urged,  nor  does  there  seem  to  be  ground  for 
contending,  that  the  transactions  in  question  were  such  as  by  the 
common  law  would  not  be  enforced. 

We  are  therefore  required  to  determine  whether  these  con- 
tracts, made  in  the  state  of  New  York,  and  presumed  to  be  gov- 
erned, as  to  their  validity,  by  the  doctrines  of  the  common  law  and 
not  objectionable  thereunder,  are  to  be  enforced  in  this  state. 

The  common  law  under  which  such  contracts  were  enforc- 
able  has  been  here  altered  by  the  passage  of  the  act  against  gam- 
ing above  referred  to.  By  the  first  section,  all  wagers,  bets  or 
stakes  made  to  depend  on  any  lot,  chance,  casualty  or  unknown 
or  contingent  event  are  declared  to  be  unlawful.  By  the  third 
section,  all  bonds,  mortgages  or  other  securities  made  or  given, 
where  the  whole  or  any  part  of  the  consideration  shall  be  for 
money  laid  or  betted  in  violation  of  the  first  section,  or  for  repay- 
ing money  knowingly  advanced  to  help  or  facilitate  such  violation, 
are  declared  to  be  utterly  void. 

If  the  contracts  now  sought  to  be  enforced  would  be  obnoxi- 
ous to  these  provisions  of  our  statute,  if  made  in  this  state,  are 
we  to  enforce  them  because  made  in  New  York,  where  we  are 
bound  to  presume  the  common  law  exists  unaltered? 

The  enforcement  of  a  foreign  law  and  contracts  dependent 
thereon  for  validity,  within  another  jurisdiction  and  by  the 
courts  of  another  nation,  is  not  to  be  demanded  as  a  matter  of 
strict  right.  It  is  permitted,  if  at  all,  only  from  the  comity 
which  exists  between  states  and  nations.  Every  independent 
community  must  judge  for  itself  how  far  this  comity  ought  to 
extend.  Certain  principles  are  well-nigh  universally  recognized 
as  governing  this  subject.  It  is  everywhere  admitted  that  a 
contract  respecting  matter  malum  in  se,  or  a  contract  contra  bonos 
mores,  will  not  be  enforced  elsewhere,  however  enforceable  by 
the  lex  loci  contractus.  An  almost  complete  agreement  exists 
upon  the  proposition  that  a  contract  valid  where  made  will  not 
be  enforced  by  the  courts  of  another  country,  if,  in  doing  so,  they 


CONTRACTS.  431 

must  violate  the  plain  public  policy  of  the  country  whose  juris- 
diction is  invoked  to  enforce  it,  or  if  its  enforcement  would  be 
injurious  to  the  interest  or  conflict  with  the  operation  of  the 
public  laws  of  that  country.  Story's  Contl.  Lazvs  §  244;  i  Addi- 
son Cont.  §  241 ;  Forbes  v.  Cochrane,  2  B.  &  C.  448 ;  Grcll  v. 
Levy,  16  C.  B.  (N.  S.)  73;  Hope  v.  Hope,  8  De  G.,  M.  &  G. 
7J7;  2  Kent's  Com.  4/5;  Bank  of  Augusta  v.  Earle,  /j  Pet. 
^ig;  Ogdcn  v.  Saunders,  12  Wheat.  213;  Blanchard  v.  Rus- 
sell, 13  Mass.  I.  This  proposition  has  been  announced  and 
applied  in  our  own  state.  Varnum  v.  Camp,  i  Gr.  326;  Frazier 
V.  Fredericks,  4  Zab.  162;  Moore  v.  Bonnell,  2  Vr.  go;  Bentley 
V.  Whittemore,  4  C.  E.  Gr.  462;  Watson  v.  Murray,  8  C.  E.  Gr. 
^57 '>  CJnion  L.  &  E.  Co.  v.  Erie  R.  Co.,  8  Vr.  23. 

Since  the  courts  of  each  state  must,  at  least  in  the  absence  of 
positive  law,  determine  ho\v  for  comity  requires  the  enforcement 
of  foreign  contracts,  it  results  that  there  is  contrariety  of  view, 
and  the  proposition  above  stated  is  not  universally  admitted. 
Thus,  in  New  York,  a  contract  made  in  Kentucky,  under  a  law 
of  that  state,  establishing  a  lottery  for  the  benefit  of  a  college, 
was  upheld,  notwithstanding  the  law  of  New  York  prohibitmg 
lotteries.  Com.  of  Ky.  v.  Bassford,  6  Hill  =,26.  Chief-Justice 
Nelson  limited  the  cases  of  contracts  not  enforceable,  though 
valid  where  made,  to  such  as  are  plainly  contrary  to  morality. 
He  gave  no  consideration  to  the  doctrine  elsewhere  settled,  that 
excludes  from  enforcement,  contracts  opposed  to  the  public  policy 
or  violative  of  a  public  law  of  the  place  of  enforcement.  In 
this  view,  he  seems  to  be  sustained  by  the  court  of  appeals. 
Thatcher  v.  Morris,  11  N.  Y.  437. 

So  in  Massachusetts,  a  contract  arising  out  of  a  completed 
sale  of  lottery  tickets,  in  a  state  where  such  sale  was  lawful,  was 
enforced  by  the  courts,  although  such  sale  was  there  prohibited 
by  statute.  Mclntyre  v.  Parks,  5  Mete.  207.  But  there  was  no 
discussion  of  principles  by  the  court. 

The  courts  of  this  state  have  expressed  and  enforced  different 
views.  Thus,  in  Varnum  v.  Camp,  1  Gr.  326,  the  question  of 
the  validity  of  a  foreign  assignment  for  the  benefit  of  creditors, 
came  before  the  supreme  court.  The  assignment  was  made  in 
New  York,  and  was  assumed  to  be  valid  by  the  law  of  that  state. 
It  created  preferences,  and  by  the  law  of  this  state,  was  fraudu- 
lent and  void.  The  assignment  was  held  unenforceable  here. 
Chief-Justice  Ewing,  whose  opinion  was  adopted  by  the  court, 
puts  the  decision  distinctly  upon  the  ground  that  the  assignment 


432  PRIVATE    INTERNATIONAL    LAW. 

was  one  in  violation  of  the  policy  of  our  laws,  in  hostility  with 
their  provisions,  and  which  they  declared  to  be  fraudulent  and 
void.  In  Bcntlcy  v.  Whittcmore,  4  C.  E.  Gr.  4.62,  a  similar  ques- 
tion arose  in  this  court,  and  the  doctrine  of  Vaniiim  v.  Camp 
was  restated  and  affirmed.  The  application  of  the  doctrine  was, 
however,  limited  to  the  protection  of  the  residents  and  citizens 
of  this  state,  for  whose  benefit  its  public  policy  was  held  to  be 
adopted.  With  respect  to  non-residents,  or  citizens  of  other 
states,  it  was  held  that  comity  would  require  the  recognition  of 
foreign  assignments,  if  valid  where  made.  IVatson  v.  Murray, 
ubi  sup.,  was  the  case  of  a  bill  filed  for  an  account  of  a  partner- 
ship transaction  in  a  lottery  in  another  state,  where  such  a  trans- 
action Vvas  claimed  to  be  lawful.  The  bill  was  dismissed  on  the 
advice  of  Vice-Chancellor  Dodd.  His  conclusion  was  that  such 
a  transaction,  though  valid  where  made,  should  not  be  enforced 
here,  because  it  was  in  violation  of  a  public  law  of  this  state, 
and  within  the  exceptions  to  the  rule  of  comity  requiring  the 
enforcement  of  foreign  contracts.  He  further  argued  that  lot- 
teries are  not  only  illegal,  but  are  to  be  judicially  considered  to 
be  immoral.  It  is  unnecessary  to  determine  how  far  that  view  can 
be  sustained.  But  with  the  conclusion  arrived  at  I  unhesitatingly 
agree.  It  is  m  accord  with  the  decisions  in  Varniim  v.  Camp 
and  Bcntlcy  v.  JVliittcinorc.  It  seems  to  me  that  nO'  court  can, 
on  full  consideration,  deliberately  adopt  a  rule  that  will  require 
the  enforcement  of  foreign  contracts,  violative  of  the  public  laws 
and  subversive  of  the  distinct  public  policy  of  the  country  whose 
laws  and  policy  they  are  bound  to  enforce.  No  comitas  inter 
couiinuv.itatcs  can  compel  such  a  sacrifice. 

The  limitations  on  the  rule  laid  down  in  Bcntlcy  v.  IVhittc- 
morc  do  not  come  in  question  in  this  case.  It  appears  that  Mrs. 
Flagg  was,  in  fact,  a  resident  of  this  state  at  the  time  these  con- 
tracts were  made,  and  there  is  nothing  to  show  a  change  of 
residence. 

We  are  brought,  then,  to  the  question  whether  our  law 
against  gaming  is  sucli  a  public  law  and  establishes  such  a  public 
policy  as  to  require  us  to  refuse  to  enforce  foreign  contracts  in 
conflict  with  it,  in  a  case  like  that  under  consideration.  I  think 
this  question  must  be  answered  in  the  affirmative. 

It  is  true  tliat.  in  Dolmau  v.  Cook  and  Campion  v.  Killc,  ubi 
sup.,  foreign  contracts,  valid  by  the  law  of  the  state  where  made, 
were  enforced  here,  although,  by  our  law,  they  were  usurious 
and  declared  to  be  void.     No  consideration  seems  to  have  been 


CONTRACTS.  433 

given  to  the  question  whether  our  usury  law  was  such  a  law  and 
evinced  such  a  pu])lic  policy  as  required  us  to  refrain  from  enforc- 
ing foreif^n  contracts  in  conflict  with  it.  As  we  have  seen,  that 
consideration  led  our  courts  to  reject  foreign  assignments  viola- 
tive of  our  laws,  where  the  interests  of  our  own  citizens  were 
concerned.  But  a  plain  distinction  at  once  presents  itself  between 
a  usury  law  and  a  law  regulating  assignments  for  the  benefit  of 
creditors,  or  a  law  against  gaming.  One  afifects  only  the  parties 
to  the  contract,  and  is  framed  for  the  protection  of  the  borrower. 
The  others  relate  to  the  public  or  classes  of  the  public  who  are 
interested  therein  and  affected  thereby. 

But  our  law  against  gaming  goes  further  than  to  merely  pro- 
hibit the  vice  of  avoid  contracts  tamted  with  it.     It  declares  it 
unlawful,  and  so  puts  the  contracts  beyond  the  protection  of  the       ,    •,- 
laws  or  the  right  of  appeal  to  the  courts.     The  reason  and  object 
of  the  law  are  obvious.     The  vice  aimed  at  is  not  only  injurious  ///,/^a 

to  the  person  who  games,  but  wastes  his  property,  to  the  injury 
of  those  dependent  on  him,  or  who  are  to  succeed  to  him.     It  has 
its  more  public  aspect,  for  if  it  be  announced  that  a  trustee  has 
been  false  to  his  trust,  or  a  public  officer  has  embezzled  public  , 
funds,  by  common  consent  the  first  inquiry  is  whether  the  de-  1 
faulter  has  been  wasting  his  property  in  gambling. 

In  my  judgment,  our  law  against  gaming  is  of  such  a  char- 
acter, and  is  designed   for  the  prevention  of  a  vice,  producing  - 
injury  so  widespread  in  its  effect,  the  policy  evinced  thereby  is  i 
of  such  public  interest  that  comity  does  not  require  us  to  here  ■ 
enforce  a  contract  which,  by  that  law,  is  stigmatized  as  unlawful, 
and  so  prohibited. 

It  remains  to  determine  w-hether  the  enforcement  of  these 
contracts  will  conflict  with  the  provisions  of  this  statute  and  the 
public  policy  thereby  established.  If  so,  it  must  be  for  the  reason 
that  the  mortgage  secures  an  indebtedness  arising  out  of  trans- 
actions that  are  wagers. 

In  considering  this  question,  care  should  be  taken  not  to 
trench  upon  legitimate  and  proper  enterprises.  The  act  is  not 
intended  to  interfere  with  the  right  of  buying  and  selling  for 
speculation. 

The  line  is  to  be  drawn  between  what  is  legitimate  specula- 
tion and  what   is  unlawful   wager.     When   property   is  actually 
bought,  whether  with  money  or  with  credit,  the  purchaser  and 
owner  may  lawfully  hold  it  for  a  future  rise  and  risk  a  future 
28 


434  PRIVATE    INTERNATIONAL    LAW. 

fall.  With  such  transactions,  the  law  does  not  pretend  to  inter- 
fere.    They  are  within  the  line  of  lawful  speculation. 

But  when,  either  witliout  any  disguise  or  under  a  guise  which 
simulates  such  legitimate  enterprises,  the  real  transaction  is  a 
mere  dealing  in  the  differences  between  prices,  i.  c,  in  the  pay- 
ments of  future  profits  or  future  losses,  as  the  event  may  be,  then, 
in  my  judgment,  the  line  which  separates  lawful  speculation  from 
illegal  wagering  is  crossed,  and  the  contract,  under  our  law,  be- 
comes unlawful,  and  the  securities  for  it  void. 

This  proposition  is  sustained  by  all  the  cases,  without  an  ex- 
ception, that  I  can  discover  The  only  disagreement  relates  to 
the  application  of  the  doctrine. 

Thus,  in  New  York,  the  court  of  appeals,  in  Kingsbury  v. 
Kinvan,  77  N.  Y.  61?,  declared  that  a  contract  for  the  purchase 
and  sale  of  property  would  be  a  wagering  contract,  if  it  was  the 
understanding  that  the  property  should  not  be  delivered,  but  that 
only  the  difference  in  the  market  price  should  be  paid  and  re- 
ceived. In  Bigelozv  v.  Benedict,  jo  N.  Y.  202,  the  same  view 
had  been  expressed,  and  it  was  also  held  that,  although  the  form 
of  the  contract  was  unobjectionable,  yet  if,  in  fact,  it  was  a  mere 
cover  for  betting  on  the  future  price  of  a  commodity,  and  no 
actual  sale  or  purchase  was  intended,  the  contract  was  one  of 
wager. 

It  is  true  that  the  same  court  has  determined,  though  against 
the  protest  of  able  and  distinguished  judges,  that  between  the 
broker  purchasing  on  a  margin  and  his  customer,  the  relation  of 
principal  and  agent,  and  of  pledgor  and  pledgee,  exists.  Mark- 
ham  v.  Jaudon,  41  N.  Y.  2j^;  Baker  v.  Drake,  66  N.  Y.  518; 
Gruman  v.  Smith ,  81  N.  Y.  2f,.  It  has  been  there  held  that  a 
broker  can  recover  from  his  customer  deficiencies  arising  from 
sales  of  stocks  bought  on  a  margin,  and  that  where,  upon  a  mar- 
gin, a  broker  made  "short  sales"  of  stock,  which  he  borrowed 
for  that  purpose,  he  might  recover  of  his  customer  what  was 
expended  m  replacing  the  borrowed  stock.  Wicks  v.  Hatch,  62 
N.  Y.  ijs^;  Knozdton  v.  Fitch,  5^  N.  Y.  288.  But  in  these 
cases,  it  does  not  seem  to  have  been  contended  that  the  contract 
was  a  mere  cover  for  wager.  Such  contention  was  made  in 
Kingsbury  v.  Kinvan  and  Bigelozv  v.  Benedict,  but  it  was  held 
that  there  was  no  sufficient  evidence  that  the  transactions  were 
not  real.  Upon  a  review  of  all  the  cases  in  New  York,  they 
establish,  in  my  judgment,  the  correct  doctrine  that  a  contract 
relating  to  differences   only   would   be  a   wager   contract.      But 


CONTRACTS.  435 

they  also  hold  that  dealings  on  margin  are  not  to  be  considered 
as  dealings  in  mete  differences.  If,  in  any  case,  evidence  suffi- 
cient to  show  that  the  margin  dealings  were  mere  covers  for 
dealings  in  differences  was  produced,  then,  upon  the  principles 
there  laid  down,  the  contracts  would  be  wagers. 

In  the  courts  of  Pennsylvania,  the  same  principles  have  been 
often  enunciated.  Thus,  in  Sinitli  v.  Bouvicr,  70  Pa.  St.  ^2^. 
the  court  approved  a  charge  to  a  jury  which  left  to  them  to  say 
whether  the  transactions  embraced  in  the  case  were  bona  fide  or 
were  mere  covers  for  gambling  operations.  See,  also,  Fareira  v. 
Gahell,  8g  Pa.  St.  8^.  And  in  general,  whenever  the  verdict  of 
a  jurv  established,  or  the  evidence  required  the  court  to  hold, 
that  the  transactions,  however  correct  in  point  of  form,  were 
mere  dealings  in  differences,  they  were  declared  to  be  wagers. 
Bnias  .4 p peal.  §f;  Pa.  St.  2Q4;  Kirkpatrick  v.  Bonsall,  J2  Pa. 
St.  755  .•  Maxton  v.  Gheen,  j^  Pa.  St.  166;  North  v.  Phillips, 
8g  Pa.  St.  2jo;  Dickson  v.  Thomas,  qj  Pa.  St.  2y8;  Ruchizky 
V.  De  Haven,  97  Pa.  St.  202;  Patterson's  Appeal,  16  Rep.  59. 
The  point  of  divergence  between  the  New  York  and  Pennsylvania 
cases  is  upon  the  relation  existing  between  the  customer  and  the 
broker  who  is  managing  a  speculative  account  upon  a  margin. 
The  New  York  cases  treat  the  broker  as  a  mere  agent,  and  so  as 
a  pledgee  of  the  stocks  purchased  on  such  an  account.  This 
result  was  reached  by  a  divided  court.  Justices  Grover  and  Wood- 
ruff delivering  vigorous  dissenting  opinions.  The  latter  especi- 
ally points  out,  in  a  perspicuous  and.  in  my  judgment,  convinc- 
ing way,  the  plain  difference  between  a  stock  broker  dealing 
on  margins  and  a  broker  or  agent  in  ordinary  transactions. 
Markham  v.  Jaudon,  41  N.  Y.  2^6.  In  Pennsylvania,  it  is  held 
that  one  who  enters  into  a  stock  speculation  on  margins,  with 
a  stock  broker,  is  to  be  considered  as  dealing  with  the  broker 
as  a  principal,  and  not  as  an  agent.  Rnchicky  v.  Dc  Haven, 
supra.  This  view  is,  in  my  judgment,  entirely  correct.  The 
customer  who  deals  on  margins  knows  no  other  person  in  the 
transaction  but  the  broker.  He  has  no  claim  upon,  and  is  sub- 
ject to  no  liability  to  any  other  person  whatever. 

The  same  doctrine  has  been  announced  by  the  su])reme  court 
of  the  District  of  Columbia  (Justh  v.  Holliday,  1 1  Wash.  L.  Rep. 
41S),  and  by  the  United  States  circuit  court  in  the  district  of 
Kansas.  Cobb  v.  Prell,  22  Am.  Laxv  Reg.  (N.  S.)  60Q.  To  the 
latter  case  a  note  is  appendetl.  discussing  the  subject  and  collect- 
ing many  cases. 


436  PRIVATE    INTERNATIONAL    LAW. 

In  Grisewood  v.  Blane,  ii  C.  B.  ^^26,  it  was  held  that  a  color- 
able contract  for  the  sale  and  purchase  of  railway  shares,  when 
neither  party  intends  to  deliver  or  accept  the  shares,  but  merely 
to  pay  differences  according  to  the  rise  and  fall  of  the  market, 
was  a  gaming-  contract,  within  the  8  and  p  Vic.  c.  ioq  §  18,  which 
declares  contracts  by  way  of  gaming  and  wagering  void,  and 
forbids  recovery  of  any  money  won  on  a  wager.  The  subsequent 
case  of  Thacker  v.  Hardy,  L.  R.  (4  Q.  B.  Div.)  685,  does  not 
shake  the  authority  of  Grisezvood  v.  Blane,  but  expressly  approves 
it.  Since,  however,  in  the  case  of  Thacker  v.  Hardy,  a  broker 
was  permitted  to  recover  of  his  customer  indemnity  for  con- 
tracts entered  into  on  a  speculative  account,  although  the  broker 
knew  the  customer  did  not  intend  to  accept  the  stock  bought 
or  deliver  the  stock  sold  for  him,  but  expected  the  broker  to  so 
arrange  m.atters  that  nothing  but  differences  were  to  be  payable 
by  him,  it  has  been  much  relied  on  by  respondent's  counsel. 
But,  in  that  case,  the  broker  was  treated  as  a  mere  agent  enter- 
ing into  contracts  for  his  principal,  and  so  entitled  to  indemnity 
against  any  personal  liability  thereon.  The  ground  of  decision 
was  that  the  contract,  as  between  the  customer  and  the  other 
principal  (the  stock  broker  being  treated  as  mere  agent),  was, 
at  the  most,  void,  but  not  illegal,  and  that  the  broker's  right  of 
indemnity  was  not  aft'ected  thereby.  Thus,  Lindsley,  J.,  by  whom 
the  case  was  tried  without  a  jury,  says  that:  "If  gaming  and 
wagering  vv^ere  illegal.  T  should  be  of  opinion  that  the  illegality  of 
the  transactions  in  which  the  plaintiff  and  defendant  were  en- 
gaged, would  have  tainted,  as  between  them,  whatever  plaintiff 
had  done  in  furtherance  of  their  illegal  designs,  and  would  have 
precluded  him  from  claiming,  in  a  court  of  law,  any  indemnity 
from  the  defendant  in  respect  of  liabilities  incurred."  He  points 
out  that  it  had  been  held,  under  the  English  act  of  8  and  g  Vict., 
above  cited,  that,  although  gaming  and  wagering  contracts  could 
not  be  enforced,  they  were  not  illegal.  He  draws  the  conclusion 
that  the  acts  of  the  broker,  not  being  in  furtherance  of  an  illegal 
transaction,  and  being  directed  by  the  customer,  entitled  him  to 
indemnity  against  loss  thereby.  On  appeal,  the  views  of  the  trial 
judge  were  approved. 

It  will  be  observed  that  our  statute  declares  such  contracts 
not  only  void,  but  unlawful,  and,  further,  that  the  relation  of 
agency  between  the  customer  and  broker,  in  such  transactions  on 
which  the  decision  was  grounded,  is  not,  by  the  weight  of  author- 
ity in  this  country,  recognized  as  the  real  relation  of  the  parties. 


CONTRACTS. 


437 


For  reasons  above  given,  I  think  it  clear  that  the  customer  and 
broker,  in  these  margin  transactions,  deal  as  two  principals,  and 
not  as  principal  and  agent. 

My  conclusion  is  that  these  transactions,  so  far  as  affected  by 
our  law  against  gaming,  are  to  be  examined,  to  discover  their  real 
nature,  and  if,  however  unobjectionable  their  form  may  be,  the 
real  contract  is  merely  in  respect  to  differences,  the  contract  is  a 
wager,  both  void  and  unlawful. 

On  examining  the  transactions  in  question  in  this  cause,  with 
a  view  to  discover  their  real  character,  I  am  compelled  to  the 
conclusion  that,  however  they  may  have  been  made  to  imitate 
real  transactions,  they  were  in  fact  mere  wagers.  It  never  was 
contemplated,  intended  or  agreed,  by  either  party,  that  the  stocks 
purchased  or  sold  were  to  become  or  to  be  treated  as  the  stocks 
of  appellants.  The  real  contract  disclosed  by  the  evidence  was 
to  receive  and  pay  differences. 

All  the  transactions  were  upon  margins.  They  commenced 
by  Flagg's  depositing  $i,ooo  with  respondent,  when  he  agreed 
to  open  the  account,  which  was  wholly  a  speculative  account. 
Afterwards  Flagg  deposited  $300  more.  Then  the  wife's  note 
for  $4,500  was  put  in,  and  the  account  transferred  to  her  name. 
Finally  the  bond  and  mortgage  were  given. 

Upon  these  advances  the  purchases  were  very  large.  Re- 
spondent testifies  that  upon  the  margin  of  $1,300,  stocks  of  a  cash 
value  of  about  $450,000  were  purchased  for  the  account  between 
January  28th  and  June  16th,  1880.  After  the  account  was 
transferred  to  Mrs.  Flagg's  name,  stocks  to  an  amount  between 
$600,000  and  $700,000,  were  purchased  between  June  i6th,  1880. 
and  March  17th,  1881.  Thus,  in  less  than  fourteen  months, 
purchases  aggregating  over  $1,000,000  were  made.  According 
to  Flagg's  statement,  the  account  once  held  one  thousand  three 
hundred  shares,  of  a  par  value  of  $1,300,000. 

The  certificates  of  the  stocks  were  never  transferred  or  de- 
livered to  appellants. 

These  enormous  transactions  were  far  beyond  the  ability  of 
appellants  at  any  time,  and  were  known  to  be  so.  It  appears 
that  respondent  was  notified  that  the  first  advance  was  all  that 
Flagg  had  to  speculate  with.  The  wife's  note,  and  subsequently 
her  bond  and  mortgage,  were  resorted  to  with  the  avowed  pur- 
pose of  binding  her  separate  property.  Respondent  admits  that 
he  was  informed  and  knew  that  Flagg  was  speculating  for  all  that 
Mrs.  Flagg  and  he  had  in  the  world. 


438  PRIVATE    INTERNATIONAL    LAW. 

Under  such  circumstances,  it  is  idle  to  pretend  that  there  was 
or  could  be  any  hope  or  expectation  that  appellants  were  to  take 
or  could  be  required  to  take  these  vast  amounts  of  stock.  For 
respondent  to  have  tendered  them,  and  demanded  payment  for 
them,  would  have  been  absurd  in  the  extreme.  The  whole  cir- 
cumstances show  that  no  such  right  to  tender  entered  into  the 
transaction.  On  the  contrary,  the  contract  plainly  was  that  if 
the  stocks  bought  advanced,  the  profit  was  to  be  realized  by  a 
sale.  If  they  declined,  the  remedy  of  respondent  to  save  himself 
was  by  a  sale.  The  settlement  was  to  be  of  the  profits  and  losses 
thus  ascertained. 

If,  in  the  absence  of  express  stipulation,  the  reciprocal  rights 
of  tendering  and  demanding  this  stock  would  be  presumed  to 
enter  into  such  a  contract,  the  whole  circumstances  corroborate 
the  testimony  of  Flagg,  who  swears  that  it  was  expressly  under- 
stood that  there  was  not  to  be  any  actual  delivery  of  stocks,  and 
that  he  should  not  be  required  to  pay  for  them. 

In  the  able  opinion  below  much  stress  is  laid  on  the  fact  that 
the  purchases  and  sales  for  this  account  were  actually  made  by 
respondent.  He  so  testifies,  and*  produces  vouchers  in  corrobo- 
ration of  his  statement.  That  the  transactions  were  very  large, 
and  upon  a  petty  advance,  is  not  sufficient,  probably,  to  permit 
us  to  reject  this  positive  statement.  But  assuming  it  to  be  true 
that  respondent  actually  purchased  or  sold  every  share  of  stock 
in  this  account,  I  am  unable  to  perceive  how  the  circumstance 
affects  the  conclusion  in  this  case.  If  respondent  was  the  mere 
agent  of  the  appellants  in  transactions  with  third  parties,  there 
might  be  some  significance  attached  to  it.  But  such  is  not,  as  we 
have  seen,  the  real  nature  of  the  relation  between  the  parties. 
They  were  dealing,  as  to  this  transaction,  as  principals,  and  it  was 
a  matter  of  indifference  whether  respondent  owned  or  bought  the 
stock  he  agreed  to  carry.  The  transaction  was  precisely  like  that 
which  Judge  Woodruff,  in  the  dissenting  opinion  in  Markham  v. 
Jaudon,  characterized  as  "'an  executory  agreement  for  a  pure 
speculation  in  the  rise  and  fall  of  stock,  which  the  broker,  on 
condition  of  indemnity  against  loss,  agrees  to  carry  through  in 
his  own  name  and  on  his  own  means  or  credit,  accounting  to  him 
[the  customer]  for  the  profits,  if  any,  and  holding  him  responsible 
for  the  losses."  Such  an  agreement  is,  within  the  principles 
above  referred  to,  a  v/ager. 

Nor  is  the  result  altered  by  the  fact  that  the  broker  has  or 
attempts  to  retain  perfect  indemnity  against  loss  on  his  part.     As 


CONIKACTS. 


439 


I  interpret  the  transactions,  respondent,  in  consideration  of  com- 
missions and  interest  on  advances,  aj^^rced  to  buy  and  hold  stock- 
in  anticipation  of  a  rise :  or  to  sell  stock  of  his  own,  or  lK)rro\ved 
for  that  purpose,  in  anticipation  of  a  fall.  The  aj^reemcnt 
required  him  to  pay  the  profits  of  the  transaction,  which  would 
otherwise  be  his,  to  appellants.  On  the  other  hand,  appellants, 
in  consideration  of  his  thus  carrying  the  stock  bought,  or  provid- 
ing the  stock  sold,  agreed  that  in  case  of  a  rise  or  fall  to  a  certain 
amount,  the  stock  should  be  closed  out,  and  the  loss,  which  other- 
wise would  fall  on  respondent,  should  be  paid  by  them  to  him. 
This  bargain  contained  all  the  elements  of  a  wager.  It  is  not  less 
a  wager  because  one  of  the  parties  obtained  a  guaranty  for  the 
performance  of  the  bargain  by  the  other  party. 

For  these  reasons  my  conclusion  is  that  the  transactions  in 
question  were  wagers  within  the  meaning  of  our  law ;  that  the 
securities  given  for  them  would  be  absolutely  void  if  the  contracts 
were  made  in  this  state;  that  although  made  in  a  foreign  state, 
and  not  objectionable  by  the  law  wdiich  must  be  presumed  (in 
the  absence  of  proof)  to  govern  them,  they  will  not  be,  and  ought 
not  to  be,  enforced  in  this  state,  between  these  parties,  because 
to  enforce  them  would  be  opposed  to  a  public  policy  on  this 
subject  of  the  vice  of  gaming,  perspicuously  shown  by  our  law 
on  that  subject. 

The  decree  below  must  be  reversed,  and  a  decree  entered  d/s- 
missing  the  bill.     Appellants  are  entitled  to  their  costs 


/        POLSON  V.   STEWART,   1897.  't^    '^    '•        (\  \,  •V\  ' 

[167  Mass.  211.]  ^it^-^ 


icu4^^    !  '    ,{,4i 


Holmes,  J.  This  is  a  bill  to  enforce  a  covenant  made  by 
the  defendant  to  his  wife,  the  plaintiff's  intestate,  in  North  Caro- 
lina, to  surrender  all  his  marital  rights  in  certain  land  of  hers. 
The  land  is  in  Massachusetts.  The  parties  to  the  covenant  were 
domiciled  in  North  Carolina.  According  to  the  bill,  the  wife 
took  steps  which  under  the  North  Carolina  statutes  gave  her  the 
right  to  contract  as  a  feme  sole  with  her  husband  as  well  as  with 
others,  and  afterwards  released  her  dower  in  the  defendant's 
lands.'  In  consideration  of  this  release,  and  to  induce  his  wife 
to  forbear  suing  for  divorce,  for  v.-hich  she  had  just  cause,  and 
for  other  adequate  considerations,  the  defendant  execut'.d  the 
covenant.     Ihe  defendant  demurs. 

The  argument  in   support   of  the   donuirrcr  goes  a  little 


440  PRIVATE    INTERNATIONAL    LAW. 

further  than  is  open  on  the  allegations  of  the  bill.  It  suggests 
that  the  instrument  which  made  the  wife  a  "free  trader,"  in  the 
language  of  the  statute,  did  not  go  into  effect  until  after  the  exe- 
cution of  the  release  of  dower  and  of  the  defendant's  covenant. 
But  the  allegation  is  that  the  last  mentioned  two  deeds  were 
executed  after  the  wife  became  a  free  trader,  as  they  probably 
were  in  fact,  notwithstanding  their  bearing  date  earlier  than  the 
registravion  of  the  free  trader  instrument.  We  must  assume 
that  at  the  date  of  their  dealings  together  the  defendant  and  his 
wife  had  as  large  a  freedom  to  contract  together  as  the  laws  of 
their  domicil  could  give  them. 

But  it  said  that  the  laws  of  the  parties'  domicil  could  not 
authorize  a  contract  between  them  as  to  lands  in  Massachusetts. 
Obviously  this  is  not  true.  It  is  true  that  the  laws  of  other 
States  cannot  render  valid  conveyances  of  property  within  our 
borders  which  our  laws  say  are  void,  for  the  plain  reason  that 
we  have  exclusive  power  over  the  res.  Ross  v.  Ross,  129  Mass. 
243,  246.  Hallgartcn  v.  Oldham,  135  Mass.  i,  7,  8.  But  the 
same  reason  inverted  establishes  that  the  lex  rei  sites  cannot 
control  personal  covenants,  nor  purporting  to  be  conveyances, 
between  persons  outside  the  jurisdiction,  although  concerning  a 
thing  within  it.  Whatever  the  covenant,  the  laws  of  North 
Carolina  could  subject  the  defendant's  property  to  seizure  on 
execution,  and  his  person  to  imprisonment,  for  a  failure  to 
perform  it.  Therefore,  on  principle,  the  law  of  North  Carolina 
determines  the  validity  of  the  contract.  Such  precedents  as  there 
are,  are  on  the  same  side.  Tlie  most  important  intimations  to  the 
contrary  which  we  have  seen  are  a  brief  note  in  Story,  Confl.  of 
Laws,  §  436,  note,  and  the  doubts  expressed  in  Mr.  Dicey's  very 
able  and  valuable  book.  Lord  Cottenham  stated  and  enforced 
the  rule  in  the  clearest  way  in  Ex  parte  Pollard,  4  Deac.  27,  40 
et  seq.;  S.  C.  Mont.  &  Ch.  239.  250.  So  Lord  Romilly  in  Cood 
V.  Cood,  33  Bcav.  314,  322.  So  in  Scotland,  in  a  case  like  the 
present,  where  the  contract  enforced  was  the  wife's.  Findlater 
V.  Seafield,  Faeidty  Decisions,  553,  Feb.  8,  1814.  See  also  Cun- 
mghame  v.  Semple,  1 1  Morison,  4462 ;  Erskine,  Inst.  Bk.  3,  tit. 
2,  §  40;  Westlake,  Priv.  Int.  Law  (3d  ed.)  §  172  Rorer,  Interstate 
Law  (2d  ed.)  289,  290. 

If  valid  by  the  law  of  North  Carolina  there  is  no  reason 
why  the  contract  should  not  be  enforced  here.  The  general  prin- 
ciple is  familiar.  Without  considering  the  argument  addressed 
to  us  that  such  a  contract  would  have  been  good   in   equity  if 


CONTRACTS.  441 

made  here  (Holmes  v.  Winchester,  133  Mass.  140,  Jones  v. 
Clifton,  loi  U.  S.  225,  and  Bean  v.  Patterson,  122  U.  S.  496, 
499),  we  see  no  q^round  of  policy  for  an  exception.  The  statu- 
tory limits  which  have  been  found  to  the  power  of  a  wife  to 
release  dower  (Mason  v.  Mason,  140  Mass.  63,  and  Peaslee  v. 
Peaslee,  147  Mass.  171,  181)  do  not  prevent  a  husband  from 
making  a  valid  covenant  that  he  will  not  claim  marital  rights 
with  any  person  competent  to  receive  a  covenant  from  him. 
Charles  v.  Charles,  8  Grat.  486.  Logan  v.  Birkctt,  i  Myl.  &  K. 
220.  Marshall  v.  Bcall,  6  How.  70.  The  competency  of  the  wife 
to  receive  the  covenant  is  established  by  the  law  of  her  domicil 
and  of  the  place  of  the  contract.  The  laws  of  Massachusetts  do 
not  make  it  impossible  for  him  specifically  to  perform  his  under- 
taking. He  can  give  a  release  which  will  be  good  by  Massachu- 
setts law.  If  it  be  said  that  the  rights  of  the  administrator  are 
only  derivative  from  the  wife,  we  agree,  and  we  do  not  for  a 
moment  regard  any  one  as  privy  to  the  contract  except  as  rep- 
resenting the  wife.  But  if  then  it  be  asked  whether  she  could 
have  enforced  the  contract  during  her  life,  an  answer  in  the 
aflfirmative  is  made  easy  by  considering  exactly  what  the  defend- 
ant undertook  to  do.  So  far  as  occurs  to  us,  he  undertook  three 
things :  first,  not  to  disturb  his  wife's  enjoyment  while  she  kept 
her  property;  secondly,  to  execute  whatever  instrument  was 
necessary  in  order  to  release  his  rights  if  she  conveyed;  and 
thirdly,  to  claim  no  rights  on  her  death,  but  to  do  whatever  was 
necessary  to  clear  the  title  from  such  rights  then.  All  these 
things  were  as  capable  of  performance  in  Massachusetts  as  they 
would  have  been  in  North  Carolina.  Indeed,  all  the  purposes  of 
the  covenant  could  have  been  secured  at  once  in  the  lifetime  of 
the  wife  by  a  joint  conveyance  of  the  property  to  a  trustee  upon 
trusts  properly  limited.  It  will  be  seen  that  the  case  does  not 
raise  the  question  as  to  what  the  common  law  and  the  presumed 
law  of  North  Carolina  would  be  as  to  a  North  Carolina  contract 
calling  for  acts  in  Massachusetts,  or  concerning  property  in 
Massachusetts,  which  could  not  be  done  consistently  with  Massa- 
chusetts law. 

With  regard  to  the  construction  of  the  defendant's  covenant 
we  have  no  doubt.  It  is  'to  surrender,  convey,  and  transfer  to 
said  Kitty  T.  Poison  Stewart,  Jr..  and  her  heirs,  all  the  rights  of 
him,  the  said  Henry  Stewart,  jr.,  in  and  to  the  lands  and  prop- 
erty above  described,  which  he  may  have  acquired  by  reason  of 
the  aforesaid  marriage,  and  the  said    Kitty  T.   Poison   Stewart. 


442  PRIVATE    INTERNATIONAL    LAW. 

Jr.,  is  to  have  the  full  and  absolute  control  and  possession  of  all 
of  said  property  free  and  discharged  of  all  the  rights,  claims,  or 
demands  of  every  nature  whatsoever  of  the  said  Henry  Stewart, 
Jr."  Notwithstanding  the  decision  of  the  majority  in  Rochon 
V.  Lecatt,  2  .Stew.  (Ala.)  429,  we  think  that  it  would  be  quib- 
bling with  the  manifest  intent  to  put  an  end  to  all  claims  of  the 
defendant  if  we  were  to  distinguish  between  vested  rights  which 
had  and  those  which  had  not  yet  become  estates  in  the  land,  or 
between  claims  during  the  life  of  the  wife  and  claims  after  her 
death.  It  is  plain,  too,  that  the  words  import  a  covenant  for  such 
further  assurance  as  may  be  necessary  to  carry  out  the  manifest 
object  of  the  deed.  See  Marshall  v.  Beall,  6  How.  70;  Ward  v. 
Thompson,  6  Gill  &  Johns.  349;  Hutchins  v.  Dixon,  11  Md.  29; 
Hamrico  v.  Laird,  10  Yerger,  222;  Mason  v.  Decse,  30  Ga.  308; 
McLeod  v.  Board,  30  Tex.  238. 

Objections  are  urged  against  the  consideration.  The  instru- 
ment is  alleged  to  have  been  a  covenant.  It  is  set  forth,  and  men- 
tions one  dollar  as  the  consideration.  But  the  bill  alleges  others ; 
to  which  we  have  referred.  It  is  argued  that  one  of  them,  for- 
bearance to  bring  a  well  founded  suit  for  divorce,  was  illegal.  The 
judgment  of  the  majority  in  Merrill  v.  Pcaslcc,  146  Mass.  460, 
463,  expressly  guarded  itself  against  sanctioning  such  a  notion, 
and  decisions  of  the  greatest  weight  referred  to  in  that  case  show 
that  such  a  consideration  is  both  sufficient  and  legal.  Nczvsome 
v.  Nezvsome,  L.  R.  2  P.  &  D.  306,  312.  Wilson  v.  Wilson,  i 
H.  L.  Gas.  538.  574.  Bcasant  v.  Wood,  12  Ch.  D.  605.  622. 
Hart  V.  Hart,  18  Ch.  D.  670,  685.  Adams  v.  Adams,  91  N.  Y. 
381.  Sterling  v.  Sterling,  12  Ga.  201.  Then  it  is  said  that  the 
wife's  agreement  in  bar  of  her  dower  was  invalid,  because  it  had 
not  the  certificate  that  she  had  been  examined,  etc.,  as  required 
by  the  North  Carolina  statutes  annexed  to  the  bill.  Whether  it 
was  invalid  or  not,  the  defendant  was  content  with  it,  and 
accepted  the  execution  of  it  as  a  consideration.  This  being 
so,  it  would  be  hard  to  say  that  it  was  not  one,  even  if  without 
legal  effect.  Whether  void  or  not,  it  is  alleged  to  have  been  per- 
formed ;  and  finally,  if  it  was  void,  it  was  void  on  its  face,  as 
matter  of  law,  and  the  hu.sband  must  be  taken  to  have  known  it, 
so  that  the  most  that  could  be  done  would  lie  to  disregard  it ;  if 
that  were  done,  the  other  considerations  would  be  sufficient.  See 
Jones  v.  Waite,  5  Bing,  N.  C.  341,  351.         Demurrer  overruled. 


CONTRACTS. 


443 


FiKi.n,  C.  J  I  cannot  assent  to  the  opinion  of  a  majority  of 
the  court.  By  our  law  husband  and  wife  are  under  a  general 
disability  or  incapacity  to  make  contracts  with  each  other.  The 
decision  in  Whitney  v.  Closson,  138  Mass.  49,  shows,  I  think, 
that  the  contract  sued  on  would  not  be  enforced  if  the  husband  and 
wife  had  been  domiciled  in  Massachusetts  when  it  was  made. 
As  a  conveyance  made  directly  between  husband  and  wife  of  an 
interest  in  Massachusetts  land  would  be  void  although  the  parties 
were  domiciled  in  North  Carolina  when  it  was  made,  and  by  tne 
laws  of  North  Carolina  were  authorized  to  make  such  a  convey- 
ance, so  I  think  that  a  contract  for  such  a  conveyance  between  the 
same  persons  also  would  be  void.  It  seems  to  me  illogical  to  say 
that  we  will  not  permit  a  conveyance  of  Massachusetts  land 
directlv  between  husband  and  wife,  wherever  they  may  have 
their  domicil,  and  yet  say  that  they  may  make  a  contract  to 
convey  such  land  from  one  to  the  other  which  our  courts  will 
specifically  enforce.  It  is  possible  to  abandon  the  rule  lex  rei 
slice,  but  to  keep  it  for  conveyances  of  land  and  to  abandon  it  for 
contracts  to  convey  land  seems  to  me  unwarrantable. 

The  question  of  the  validity  of  a  mortgage  of  land  in  this 
Commonwealth  is  to  be  decided  by  the  law  here,  although  the 
mortgage  was  executed  elsewhere  where  the  parties  resided,  and 
would  have  been  void  if  upon  land  there  situated.  Goddard  v. 
Satvyer,  9  Allen,  78.  "It  is  a  settled  principle,  that  'the  title  to, 
and  the  disposition  of.  real  estate  must  be  exclusively  regulated 
by  the  law  of  the  place  in  which  it  is  situated.'  "  Cutter  v. 
Daveiipart,  i  Pick.  81.  Osborn  v.  Adams,  18  Pick  245.  The 
testamentary  execution  of  a  power  of  appointment  given  by  will 
in  relation  to  land  is  governed  by  the  lex  situs,  or  the  law  of  the 
domicil  of  the  donor  of  the  power.  Sc7vall  v.  Wilmcr,  132  Mass. 

131- 

The  plaintiff,  merely  as  administrator,  cannot  maintain  the 

bill.  Caverly  v.  Simpson,  132  Mass.  462,  464.  The  plaintiff 
must  proceed  on  the  ground  that  Mrs.  Henry  Stewart.  Jr. 
acquired  by  the  instruments  executed  in  North  Carolina  the  right 
to  have  conveyed  or  released  to  her  and  her  heirs  by  her  husband 
all  the  interest  he  had  as  her  husband  in  her  lands  in  Massachu- 
setts;  that  this  right  descended  on  her  death  to  her  heirs,  accord- 
ing to  the  law  of  Massachusetts;  and  that  the  plaintitT.  being  an 
heir,  has  acquired  the  interest  of  the  other  heirs,  and  therefore 
brmgs  the  bill  as  owner  of  this  right.  The  plaintiff,  as  heir, 
claims  by  descent  from  Mrs.  Stewart,  and  if  the  contract  sued  on 
is  void  as  to  her.  it  is  void  as  to  him. 


444  PRIVATE    INTERNATIONAL    LAW. 

Tt  is  only  on  the  ground  that  the  contract  conveyed  an  equi- 
table title  that  the  plaintiff  as  heir  has  any  standing  in  court. 
His  counsel  founds  his  arguments  on  the  distinction  between 
a  conveyance  of  the  legal  title  to  land  and  a  contract  to  convey 
it.  If  the  instrument  relied  on  purported  to  convey  the  legal 
title,  his  counsel  in  effect  admits  that  it  would  be  void  by  our  law. 
He  accepts  the  doctrine  stated  in  Ross  v.  Ross,  129  Mass.  243, 
246,  as  follows :  ''And  the  validity  of  any  transfer  of  real  estate 
by  act  of  the  owner,  whether  ijiter  vi-vos  or  by  will,  is  to  be  deter- 
mined, even  as  regards  the  capacity  of  the  grantor  or  testator,  by 
the  law  of  the  State  in  which  the  land  is  situated."  As  a  con- 
tract purporting  to  convey  a  right  in  equity  to  obtain  the  legal 
title  to  land,  he  contends  that  it  is  valid.  I  do  not  dispute  the 
cases  cited  with  reference  to  contracts  concerning  personal  prop- 
erty, but  the  rule  at  common  law  in  regard  to  the  capacity  of 
parties  to  make  contracts  concerning  real  property,  as  I  read  the 
cases  and  text-books,  is  that  the  lex  situs  governs.  Cochran  v. 
Benton,  126  Ind.  58.  Doyle  v.  McGuirc,  38  Iowa.  410.  Sell  v. 
Miller,  11  Ohio  St.  331.  Johnston  v.  Gawtry,  11  Mo.  App.  322. 
Frierson  v.  Williams,  57  Miss.  451. 

Dicey  on  the  Conflict  of  Laws  is  the  latest  text-book  on  the 
subject.     He  states  the  rule  as  follows : 

Page  Ixxxix.     "(B).     Validity  of  Contract,      (i)    Capacity. 

"Rule  146.  Subject  to  the  exceptions  hereinafter  mentioned, 
a  person's  caoacity  to  enter  into  a  contract  is  governed  by  the 
lav;  of  his  domicil  (lex  doinicilii)  at  the  time  of  the  making  of  the 
contract. 

'■(i)  If  he  has  such  capacity  by  that  law,  the  contract  is,  in 
so  far  as  its  validity  depends  upon  his  capacity,  valid. 

"(2)  If  he  has  not  such  capacity  by  that  law,  the  contract 
is  invalid. 

"Exception  i.  A  person's  capacity  to  bind  himself  by  an  ordi- 
nary mercantile  contract  is  (probably)  governed  by  the  law  of 
the  country  where  the  contract  is  made  (lex  loci  contractus)  [?]. 

"Exception  2.  A  person's  capacity  to  contract  in  respect 
of  an  immovable  (land)  is  governed  by  the  lex  situs." 

Page  xcii.     "(A).     Contracts  with   regard  to  Immovables. 

"Rule  151.  The  effect  of  a  contract  with  regard  to  an  im- 
movable is  governed  l)y  the  proper  law  of  the  contract  [  ?]. 

"The  proper  law  of  such  contract  is,  in  general,  the  law  of 
the  country  where  the  immovable  is  situate  {lex  situs)." 

On  page  $17  et  seq.  he  states  the  law  in  the  same  way,  with 


CONTRACTS.  445 

numerous  illustrations,  but  with  some  hesitation  as  to  the  law 
governing'  the  form  of  contracts  to  convey  immovables.  See 
page  xc,  Rule  147,  Exception  i.  For  American  notes  with 
cases,  see  page  527  et  seq.  In  the  Apppendix,  page  769,  note 
(B),  he  discusses  the  subject  at  length,  and  with  the  same  result. 
Some  of  the  cases  cited  are  the  following:  Succession  of  Lar- 
endon,  39  La.  An.  952 ;  Besse  v.  FcUochoiix,  73  111.  285 ;  Fuss  v. 
Fuss,  24  Wis.  256;  Moore  v.  Church,  70  Iowa,  208;  Heine  v. 
Mechanics  &  Traders  Ins.  Co.  45  La.  An.  770;  First  National 
Bank  of  Attlehoro  v.  Hughes,  10  Mo.  App.  7 ;  Ordronaux  v.  Rey, 
2  Sandf.  Ch.  33;  Adams  v.  Clutterhuck,  10  Q.  B.  D.  403;  Chap- 
man V.  Robertson,  6  Paige,  627,  630. 

Phillimore  in  4  Int.  Law  (3d  ed.),  596,  states  the  law  as 
follows : 

"DCCXXXV.  I.  The  case  of  a  contract  respecting  the 
transfer  of  immovable  property  illustrates  the  variety  of  the  rules 
which  the  foreign  writers  upon  private  international  law  consider 
applicable  to  a  contract  to  which  a  foreigner  is  a  party :  they  say 
that, 

"i.  The  capacity  of  the  obligor  to  enter  into  the  contract  is 
determined  by  reference  to  the  law^  of  his  domicil. 

"ii.  The  like  capacity  of  the  obligee  by  the  law  of  his  domicil. 
"iii.  The  mode  of  alienation  or  acquisition  of  the  immovable 
property  is  to  be  governed  by  the  law^  of  the  situation  of  that 
property. 

"iv.  The  external  form  of  the  contract  is  to  be  governed  by 
the  law  of  the  place  in  which  the  contract  is  made. 

"It  is  even  suggested  by  Fcelix,  that  sometimes  the  inter- 
pretation of  the  contract  may  require  the  application  of  a  fifth 
law. 

"DCCXXXVI.  The  Law  of  England,  and  the  Law  of  the 
North  American  United  States,  require  the  application  of  the 
lex  rei  sita-  to  all  the  four  predicaments  mentioned  in  the  last 
section. 

"DCCXXXVII.  But  a  distinction  is  to  be  taken  between 
contracts  to  transfer  property  and  the  contracts  by  which  it  is 
transferred.  The  former  are  valid  if  executed  according  to  the 
lex  loci  contractus;  the  latter  require  for  their  validity  a  compli- 
ance with  the  forms  prescribed  by  the  lex  rei  sitcc.  Without  this 
compliance  the  dominium  in  the  property  will  not  pass." 

To  the  same  cflfect  as  to  the  capacity  of  the  parties  arc  Ratti- 
gan,  Priv.  Int.  Law,  128;  Whart.  Confl.  of  Laws  (2d  cd.)  §  296: 


446  PRIVATE     INTERNATIONAL    LAW. 

Story.  Confl.  of  Laws  (8th  ed.)  §§424-431,  435;  Rorer,  Inter- 
state Law,  263 ;  Nelson,  Priv.  Int.  Law,  147,  260.  See  West- 
lake,  Priv.  Int.  Law  (3d  ed.)  §§  156,  167  et  seq. 

On  reason  and  authority  I  think  it  cannot  be  held  that, 
although  a  deed  between  a  husband  and  his  wife,  domiciled  in 
North  Carolina,  of  the  rights  of  each  in  the  lands  of  the  other  in 
Massachusetts,  is  void  as  a  conveyance  by  reason  of  the  incapacity 
of  the  parties  under  the  law  of  Massachusetts  to  make  and  receive 
such  a  conveyance  to  and  from  each  other,  yet,  if  there  are  cove- 
nants in  the  deed  to  make  a  good  title,  the  covenants  can  be 
specifically  enforced  by  our  courts,  and  a  conveyance  compelled, 
which,  if  voluntarily  made  between  the  parties,  would  be  void. 

I  doubt  if  all  of  the  instruments  relied  on  have  been  executed 
in  accordance  with  the  statutes  of  North  Carolina.  By  §  1828 
of  the  statutes  of  that  State  set  out  in  the  papers,  the  wife 
became  a  free  trader  from  the  time  of  registration.  This  I 
understand  is  January  7,  1893.  Exhibit  B  purports  to  have  been 
executed  before  that  time,  to  wit,  January  4,  1893.  There  does 
not  appear  to  have  been  any  examination  of  the  wife  separate  and 
apart  from  her  husband,  as  required  by  §  1835.  If  Exhibit  B 
fails,  there  is  at  least  a  partial  failure  of  consideration  for  Exhibit 
C.  It  is  said  that  an  additional  consideration  is  alleged,  viz.  the 
wife's  forbearing  to  bring  a  suit  for  divorce.  Whether  this  last 
is  a  sufficient  consideration  for  a  contract  I  do  not  consider.  It 
is  plain  enough  that  there  was  an  attempt  on  the  part  of  the  hus- 
band and  wife  to  continue  to  live  separate  and  apart  from  each 
other  without  divorce,  and  to  release  to  each  other  all  the  property 
rights  each  had  in  the  property  of  the  other.  If  the  release  of 
one  fails,  I  think  that  this  court  should  not  specifically  enforce 
the  release  of  the  other ;  mutuality  in  this  respect  is  of  the  essence 
of  the  transaction.  If  the  husband  owned  lands  in  Massachu- 
setts, and  had  died  before  his  wife,  I  do  not  think  that  Exhibit 
B,  even  if  it  were  executed  according  to  the  statutes  of  North 
Carolina,  and  the  wife  duly  examined  and  a  certificate  thereof 
duly  made,  would  bar  her  of  her  dower.  Our  statutes  provide 
how  dower  may  be  barred.  Pub.  Sts.  c.  124,  §§  6-9.  Exhibit 
B  is  not  within  the  statute.  See  Mason  v.  Mason,  140  Mass.  63. 
Ante-nuptial  contracts  have  been  enforced  here  in  equity  so  as  to 
operate  as  a  bar  of  dower,  even  if  they  did  not  constitute  a  legal 
bar.  Jenkins  v.  Holt,  109  Mass.  261.  But  post-nuptial  con- 
tracts, so  far  as  I  am  aware,  never  have  been  enforced  here  so  as 
to  bar  dower,  unless  they  conform  to  the  statutes.     Whitney  v. 


CONTRACTS.  447 

Closson,  138  Mass.  49.  Whatever  may  be  true  of  contracts 
between  lnisl:)an(l  and  wife  made  in  or  when  they  are  domiciled  in 
other  jurisdictions,  so  far  as  personal  property  or  personal 
liability  is  concerned,  I  think  that  contracts  affecting  the  title  to 
real  property  situate  within  the  Commonwealth  should  be  such  as 
are  authorized  by  our  laws.  I  am  of  opinion  that  the  bill  should 
be  dismissed. 

SCUDDER  V.  UNION   NATIONAL  BANK,   1875. 
[91  U.  S.  406.] 

Error  to  the  Circuit  Court  of  the  United  States  for  the 
Northern  District  of  Illinois. 

This  was  an  action  of  assumpsit  against  William  H.  Scudder 
and  others,  constituting  the  firm  of  Henry  Ames  &  Co.,  to 
recover  the  amount  of  a  bill  of  exchange.  Process  was  served 
only  upon  Scudder,  who  pleaded  non-assumpsit  and  several  special 
pleas. 

The  statute  of  Illinois  on  which  one  of  the  pleas  is  based 
provides  that  no  action  shall  be  brought  whereby  to  charge  the 
defendant  upon  any  .special  promise  to  answer  for  the  debt, 
default,  or  miscarriage  of  another  person,  "unless  the  promise  or 
agreement  upon  which  such  action  shall  be  brought,  or  some 
memorandum  or  note  thereof,  shall  be  in  writing,  and  signed  by 
the  party  to  be  charged  therewith,  or  some  other  person  thereunto 
by  him  specially  authorized." 

The  Missouri  statute  provides : — 

''Section  i.  No  person  within  this  State  shall  be  charged 
as  an  acceptor  of  a  bill  of  exchange,  unless  his  acceptance  shall 
be  in  writing,  signed  by  himself  or  his  lawful  agent. 

"Sect.  2.  If  such  acceptance  be  written  on  a  paper  other  than 
the  bill,  it  shall  not  bind  the  acceptor,  except  in  favor  of  a  person 
to  whom  such  acceptance  shall  have  been  shown,  and  who,  upon 
the  faith  thereof,  shall  have  received  the  bill  for  a  valuable  con- 
sideration. 

"Sect.  3.  An  tmconditional  promise  in  writing,  to  accept  a 
bill  before  drawn,  shall  be  deemed  an  actual  acceptance  in  favor  of 
every  person  to  whom  such  written  promise  shall  have  been 
shown,  and  who,  upon  the  faith  thereof,  shall  have  received  rhe 
bill  for  a  valuable  consideration. 

"Sect.  4.     Every  holder  of  a  bill  presenting  the  same  for 


448  PRIVATE    INTERNATIONAL    LAW. 

acceptance  may  require  that  the  acceptance  be  written  on  the  bill ; 
and  a  refusal  to  comply  with  such  request  shall  be  deemed  a 
refusal  to  accept,  and  the  bill  may  be  protested  for  non-acceptance. 
"Sect.  5.  The  preceding  sections  shall  not  be  construed  to 
impair  the  right  of  any  person  to  whom  a  promise  to  accept  a  bill 
may  have  been  made,  and  who,  on  the  faith  of  such  promise,  shall 
have  drawn  or  negotiated  the  bill,  to  recover  damages  of  the  party 
making  such  promise,  on  his  refusal  to  accept  such  bill." 

The  parties  went  to  trial ;  and  the  bank  offered  evidence  tend- 
ing to  establish,  that  for  over  a  year  prior  to  the  seventh  day  of 
July,  1 87 1,  the  firm  of  Henry  Ames  &  Co.  were  engaged  in  busi- 
ness at  St.  Louis,  Mo.,  and  that  Leland  &  Harbach.  commission- 
merchants  in  Chicago,  had  from  time  to  time  bought  lots  of  pork 
for  said  firm,  on  commission;  that  on  the  seventh  day  of  July, 
1 87 1,  the  defendant  Scudder,  a  member  of  said  firm,  came  to 
Chicago  at  the  request  of  Leland  &  Harbach,  who  were  then  in 
an  embarrassed  condition,  owing  to  speculations  in  grain ;  that,  on 
the  same  day,  John  L.  Hancock  delivered  to  Leland  &  Harbach 
500  barrels  of  pork,  which  they  had  bought  of  him  for  Ames  & 
Co.,  by  their  request  and  direction,  at  $16.25  per  barrel,  in  May, 
to  be  delivered  in  July,  of  which  purchase  said  Ames  &  Co.  had 
been  duly  advised ;  tliat,  in  payment  of  said  pork,  Leland  &  Har- 
bach gave  Hancock  their  check  on  the  Union  National  Bank  of 
Chicago  for  $8,031  ;  and  that  the  charges  for  inspection  and  com- 
missions made  the  total  cost  of  the  pork  $8,125. 

That  Leland  &  Harbach,  on  the  same  day,  shipped  the  pork 
to  Ames  &  Co.  at  St.  Louis,  Mo.,  who  received  and  sold  it;  and 
that,  at  the  time  the  bill  was  drawn,  Scudder,  who  was  then 
present  in  the  office  of  Leland  &  Harbach,  consented  to  the  receipt 
of  said  pork,  and  verbally  authorized  them  to  draw  on  Ames  & 
Co.  for  the  amount  due  therefor. 

That  a  bill  of  exchange  in  words  and  figures  following — 

"8,125.00.  Chicago,  July  7,  1871. 

"Pay  to  the  order  of  Union  National  Bank  eight  thousand 
one  hundred  and  twenty-five  dollars,  value  received,  and  charge 
to  account  of  Leland  &  Harbach. 

"To  Messrs.  Henry  Ames  &  Co.,  St.  Louis,  Mo." 

—was  on  said  seventh  day  of  July,  1871,  presented  for  discount 
at  the  Union  National  Bank  by  Leland  &  Harbach's  clerk;  and 


CONTRACTS.  449 

the  vice-president  of  the  bank  declined  to  give  Lcland  &  Har- 
bach  credit  for  the  bill  without  a  bill  of  lading  or  other  security. 
That  the  clerk  then  returned  to  Leland  &  Harbach's  office,  and 
stated  the  bank's  objections,  Scudder  being  present;  and,  in  the 
presence  and  hearing  of  said  defendant,  Scudder,  the  clerk  was 
told  by  Leland  or  Harbach  to  return  to  the  bank,  and  tell  the 
vice-president  that  Scudder,  one  of  the  firm  of  Ames  &  Co.,  was 
then  in  Chicago,  and  had  authorized  the  drawing  of  said  draft, 
and  that  it  was  drawn  against  500  barrels  of  pork  that  day  bought 
by  Leland  &  Harbacli  for  Henry  Ames  &  Co..  and  duly  shipped 
to  them.  That  the  clerk  returned,  and  made  the  statement  as 
directed ;  and  the  vice-president,  upon  the  faith  of  such  statement 
that  the  bill  was  authorized  by  defendants,  discounted  said  bill, 
the  proceeds  were  passed  to  Leland  &  Harbach's  credit,  and  the 
check  given  by  them  to  Hancock  in  payment  of  said  pork  was  paid 
our  of  the  proceeds  of  said  draft. 

The  bank  then  offered  in  evidence  the  said  bill  of  exchange 
with  a  notarial  certificate  of  protest,  showing  that  the  bill  was 
presented  to  Henry  Ames  &  Co.  for  payment  July  8,  1871,  and 
duly  protested  for  non-payment. 

It  was  admitted  that  said  Ames  &  Co.  had  never  paid  said 
bill. 

The  court  charged  the  jury.  The  following  parts  thereof 
Scudder  excepted : — 

"If  you  find  from  the  evidence  that  Mr.  Scudder,  one  of  the 
defendants,  autb.orized  the  drawing  of  the  draft  in  question,  and 
authorized  the  clerk,  George  H.  Harbach.  to  so  state  to  the  vice- 
president  of  the  bank,  and  that  the  said  draft  was  discounted  by 
the  bank  upon  the  faith  of  such  statement,  such  conduct  on  the 
part  of  Mr.  Scudder  may  be  considered  by  you  as  evidence  of  an 
implied  promise  by  the  defendants  to  pay  the  draft ;  and  it  is  not 
necessary  for  that  purpose  that  Mr.  Scudder  should  have  ex- 
pressly sent  word  to  the  bank  if  such  statements  were  made  in 
his  hearing  and  presence,  and  no  objections  made  to  them  by  him ; 
that  is  to  say,  if  he  stood  by  and  allowed  either  Leland  or  Harbach 
to  send  such  word  to  the  bank  without  dissenting  thcreform.  If 
you  find  by  a  fair  preponderance  of  the  testimony  that  Mr.  Scud- 
der knew  the  pork  had  been  delivered  to  Leland  &  Harbach  at  the 
time  the  draft  was  drawn,  and  acquiesced  in  the  drawing  of  the 
draft,  and  acquiesced  in  the  word  sent  to  the  bank  that  he  had 
authorized  it.  von  mav  from  such  facts  find  an  implied  promise 
29 


450  PRIVATE    INTERNATIONAL    LA>y. 

by  the  defendants  to  pay  the  draft.  It  was  not  necessary  that 
ScLidder  should  go  to  the  bank  and  state  that  he  had  authorized 
the  draft,  if  you  are  satisfied  that  he  allowed  such  statement  to  be 
made  b}  the  messenger. 

"It  being  an  admitted  fact  that  the  defendants  have  the  pro- 
ceeds of  the  pork  against  which  this  draft  was  drawn,  such  fact 
may  also'  be  considered  by  you  as  an  additional  circumstance  tend- 
ing to  show  a  promise  on  the  part  of  the  defendants  to  pay  the 
draft. 

"The  real  issue  in  this  case  is,  whether  Mr.  Scudder  author- 
ized the  drawing  of  the  draft  in  question,  and  expressly  or  im- 
pliedly promised  to  pay  it." 

The  jury  found  a  verdict  in  favor  of  the  bank ;  and  the  court, 
overruling  a  motion  for  a  new  trial,  rendered  judgment.  Scudder 
sued  out  this  writ  of  error. 

Mr.  Justice  Hunt  delivered  the  opinion  of  the  court. 

It  is  not  necessary  to  examine  the  question,  whether  a  denial 
of  the  motion  to  set  aside  the  summons  can  be  presented  as  a 
ground  of  error  on  this  hearing.  The  facts  are  so  clearly  against 
the  motion,  that  the  question  does  not  arise. 

It  does  not  become  necessary  to  examine  the  question  of 
pleading,  which  is  so  elaborately  spread  out  in  the  record.  The 
only  serious  question  in  the  case  is  presented  upon  the  objection 
to  the  admission  of  evidence  and  to  the  charge  of  the  judge. 

Upon  the  merits,  the  case  is  this :  The  plaintiff  below  sought 
to  recover  from  the  firm  of  Henry  Ames  &  Co.,  of  St.  Louis,  Mo., 
the  amount  of  a  bill  of  exchange,  of  which  the  following  is  a 
copy;  viz. : — 

"$8,125.00.  "Chicago,  July  7,  1871. 

■'Pay  to  the  order  of  Union  National  Bank  eight  thousand 
one  hundred  and  twenty-five  dollars,  value  received,  and  charge 
to  account  of  "Leland  &  Harbach. 

"To  Messrs.  Henry  Ames  &  Co.,  St.  Louis,  Mo." 

By  the  direction  of  Ames  &  Co.,  Leland  &  Harbach  had 
bought  for  them,  on  the  seventh  day  of  July,  1871,  shipped  to 
them  at  St.  Louis,  500  barrels  of  Dork,  and  gave  their  check  on 
the  Union  bank  to  Hancock,  the  seller  of  the  same,  for  $8,000. 

Leland  &  Harbach  then  drew  the  bill  in  question,  and  sent 


CONTRACTS.  451 

Che  same  by  their  clerk  to  the  Union  Bank  (the  plaintiff  below) 
to  be  placed  to  their  credit.  Ihe  bank  declined  to  receive  the  bill, 
unless  accompanied  by  the  bill  of  ladinj:^  or  other  security.  The 
clerk  returned,  and  reported  accordinj^ly  to  Leland  &  Harbach. 
One  of  the  firm  then  directed  the  clerk  to  return  to  the  bank,  and 
say  that  Mr.  Scudder,  one  of  the  firm  of  Ames  &  Co.  (the 
drawees),  was  then  in  Chicago,  and  had  authorized  the  drawing 
of  the  draft ;  that  it  was  drawn  against  500  barrels  of  pork  that 
day  bought  by  Leland  &  Harbach  for  them,  and  duly  shipped  to 
them.  The  clerk  returned  to  the  bank,  and  made  this  statement 
to  its  vice-president ;  who  thereupon,  on  the  faith  of  the  statement 
that  the  bill  was  authorized  by  the  defendants,  discounted  the 
same,  and  the  proceeds  were  placed  to  the  credit  of  Leland  & 
Harbach.  Out  of  the  proceeds  the  check  given  to  Hancock 
for  the  pork  was  paid  by  the  bank. 

The  direction  to  inform  the  bank  that  Mr.  Scudder  was  in 
Chicago  and  had  authorized  the  drawing  of  the  draft  was  made 
in  the  presence  and  in  the  hearing  of  Scudder,  and  without  objec- 
tion by  him. 

The  pomt  was  raised  in  various  forms  upon  the  admission  of 
evidence,  and  by  the  charge  of  the  judge,  whether,  upon  this  state 
of  facts,  the  firm  of  Ames  &  Co.,  the  defendants,  were  liable  to 
the  bank  for  the  amount  of  the  bill.  The  jury,  under  the  charge 
of  the  judge,  held  them  to  be  liable;  and  it  is  from  the  judgment 
entered  upon  that  verdict  that  the  present  writ  of  error  is  brought. 

The  question  is  discussed  in  the  appellant's  brief,  and  prop- 
erly, as  if  the  direction  to  the  clerk  had  been  given  by  Scudder 
in  person.  The  jury  were  authorized  to  consider  the  direction  in 
his  name,  in  his  presence  and  hearing,  without  objection  by  him, 
as  made  by  himself. 

The  objection  relied  on  is,  that  the  transaction  amounted  at 
most  to  a  parol  promise  to  accept  a  bill  of  exchange  then  in 
existence.  It  is  insisted  that  such  a  promise  does  not  bind  the 
defendants. 

The  suit  to  recover  upon  the  alleged  acceptance,  or  upon  the 
refusal  to  accept,  being  in  the  State  of  Illinois,  and  the  contract 
having  l>een  made  in  that  State,  *he  judgment  is  to  be  given 
according  to  the  laws  of  that  State.  The  law  of  the  expected 
place  of  performance,  should  there  be  a  difference,  yieltls  to  the 
lex  fori  and  the  lex  loci  contractus. 

In  Wheaton  on  Conflict  of  Laws,  sect.  401,  p.  the  rule  is  thus 
laid  down : — 


452  PRIVATE    INTERNATIONAL    LAW. 

"Obligations,  in  respect  to  the  mode  of  their  solemnization, 
are  subject  to  the  rule  locus  regit  actum;  in  respect  to  their  inter- 
pretation, to  the  lex  loci  contractus;  in  respect  to  the  mode  of  their 
performance,  to  the  law  of  the  place  of  their  performance.  But 
the  lex  fori  determines  when  and  how  such  laws,  when  foreign, 
are  to  be  adopted,  and,  in  all  cases  not  specified  above,  supplies 
the  applicatory  law." 

Miller  v.  Tiffany,  i  Wall.  310;  Chapman  v.  Robertson,  6 
Paige,  634;  Andreivs  v.  Pond,  13  Pet.  78;  Lamesse  v.  Baker,  3 
Wheat.  147;  Adams  v.  Robertson,  37  111.  59;  Ferguson  v.  Fuffe, 
8  C.  &  F.  121  ;  Bain  v.  Whitehaven  and  Furness  Junction  Ry.  Co., 
3  H.  L.  Cas.  I ;  Scott  v.  Pilkmton,  15  Abb.  Pr.  280;  Story,  Confl. 
Laws,  203  ;  10  Wheat.  383. 

The  rule  is  often  laid  down,  that  the  law  of  the  place  of 
performance  governs  the  contract. 

Mr.  Parsons,  in  his  "Treatise  on  Notes  and  Bills,"  uses  this 
language:  "If  a  note  or  bill  be  made  payable  in  a  particular 
place,  it  is  to  be  treated  as  if  made  there,  without  reference  to 
the  place  at  which  it  is  written  or  signed  or  dated."  P.  324. 

For  the  purposes  of  payment,  and  the  incidents  of  payment, 
this  is  a  sound  proposition.  Thus  the  bill  in  question  is  directed 
to  parties  residing  in  St.  Louis,  Mo.,  and  contains  no  statement 
whether  it  is  payable  on  time  or  at  sight.  It  is,  in  law,  a  sight 
draft.  Whether  a  sight  draft  is  payable  immediately  upon  pre- 
sentation, or  whether  days  of  grace  are  allowed,  and  to  what 
extent,  is  differently  held  in  different  States.  The  law  of  Mis- 
.  souri,  where  this  draft  is  payable,  determines  that  question  in 
the  present  instance. 

The  time,  manner,  and  circumstances  of  presentation  for 
acceptance  or  protest,  the  rate  of  interest  when  this  is  not  specified 
in  the  bill  {Young  v.  Harris,  14  B.  Mon.  556:  Parry  v.  Ains- 
zvorth,  22  Barb.  118),  are  points  connected  with  the  payment  of 
the  bill ;  and  arc  also  instances  to  illustrate  the  meaning  of  the 
rule,  that  the  place  of  performance  governs  the  bill. 

The  same  author,  however,  lays  down  the  rule,  that  the  place 
of  making  the  contract  governs  as  to  the  formalities  necessary 
to  the  validity  of  the  contract.  P.  317.  Thus,  whether  a  contract 
shall  be  in  writing,  or  may  be  made  by  parol,  is  a  formality  to 
be  determined  by  the  law  of  the  place  where  it  is  made.  If  valid 
there,  the  contract  is  binding,  although  the  law  of  the  place  of 
performance  may  require  the  contract  to  be  in  writing.  Dacosta 
V.  Hatch,  4  Zab.  319. 


CONTRACTS.  453 

So  when  a  note  was  indorsed  in  New  York,  although  drawn 
and  made  payable  in  France,  the  indorsee  may  recover  against 
tht*payee  and  indorser  upon  a  failure  to  accept,  although  by  the 
laws  of  France  such  suit  cannot  be  maintained  until  after  default 
in  payment.    Ayinar  v.  Shelden,  12  Wend.  439. 

So  if  a  note,  payable  in  New  York,  be  given  in  the  State  of 
Illinois  for  money  there  lent,  reserving  ten  per  cent  interest, 
which  is  legal  in  that  State,  the  note  is  valid,  although  but  seven 
per  cent  interest  is  allowed  by  the  laws  of  the  former  State. 
Miller  v.  Tifi'any,  i  Wall.  310;  Dcpean  v.  Humphry,  20  How. 
i;  Chapman  v.  Robertson,  6  Paige,  634;  Andrezvs  v.  Pond,  13 
Pet.  65. 

Matters  bearing  '.ipon  the  execution,  the  interpretation,  and 
the  validity  of  a  contract  are  determined  by  the  law  of  the  plare 
where  the  contract  is  made.  Matters  connected  with  its  per- 
formance are  regulated  by  the  law  prevailing  at  the  place  of  per- 
formance. Matters  respecting  the  remedy,  such  as  the  bringing 
of  suits,  admissibility  of  evidence,  statutes  of  limitation,  depend 
upon  the  law  of  the  place  where  the  suit  is  brought. 

A  careful  examination  of  the  well-considered  decisions  of 
this  country  and  of  England  will  sustain  these  positions. 

There  is  no  statute  of  the  State  of  Illinois  that  requires  an 
acceptance  of  a  bill  of  exchange  to  be  in  writing,  or  that  pro- 
hibits a  parol  promise  to  accept  a  bill  of  exchange:  on  the  con- 
trary, a  parol  acceptance  and  a  parol  promise  to  accept  are  valid 
in  that  State,  and  the  decisions  of  its  highest  court  hold  that  a 
parol  promise  to  accept  a  bill  is  an  acceptance  thereof.  If  this 
be  so,  no  question  of  jurisdiction  or  of  conflict  of  laws  arises. 
The  contract  to  accept  was  not  only  made  in  Illinois,  but  the  bill 
was  then  and  there  actually  accepted  in  Illinois,  as  perfectly  as  if 
Mr.  Scudder  had  written  an  acceptance  across  its  face,  and  signed 
thereto  the  name  of  his  firm.  The  contract  to  accept  the  bill  was 
not  to  be  performed  in  Missouri.  It  had  already,  by  the  promise, 
been  performed  in  Illinois.  The  contract  to  pay  was,  indeed,  to 
be  performed  in  Missouri ;  but  that  was  a  different  contract  from 
that  of  acceptance.  Nelson  v.  First  Nat.  Bank,  48  111.  39;  Mason 
v.  Dousay,  35  id.  424;  Jones  v.  Bank,  34  id.  319. 

Unless  forbidden  by  statute,  it  is  the  rule  of  law  generally, 
that  a  promise  to  accept  an  existing  bill  is  an  acceptance  thereof, 
whether  the  promise  be  in  writing  or  by  parol.  Wynne  v.  Raikes, 
5  East,  514;  Bank  of  Ireland  v.  Archer,  11  M.  &  W.  i^i:  Ho-a.'  v. 
Loring,  24  Pick.  254;  IVard  v.  Allen,  2  Met.  53;  Bank  v.  Wood- 


454  PRIVATE    INTERNATIONAL    LAW. 

ruff,  34  Vt.  92;  Spalding  v.  Andrews,  12  Wright,  411 ;  Williams 
V.  Winans,  2  Green  (N.  J.),  309;  St  over  v.  Logan,  9  Mass.  56; 
Byles  on  Bills,  sect.  149;  Barney  v.  Withington,  37  N.  Y.  1 12. 
See  the  Illinois  cases  cited,  supra. 

Says  Lord  Ellenboroiigh,  in  the  first  of  these  cases,  "A  prom- 
ise to  accept  an  existing  bill  is  an  acceptance.  A  promise  to  pay 
it  is  also  an  acceptance.  A  promise,  therefore,  to  do  the  one  or 
the  other, — i.  e.,  to  accept  or  certainly  pay,  cannot  be  less  than  an 
acceptance." 

In  Williams  v.  Winans,  Hornblower,  C.  J.,  says,  "The  first 
question  is,  whether  a  parol  acceptance  of  a  bill  will  bind  the 
acceptor;  and  of  this  there  is  at  this  day  no  room  to  doubt.  The 
defendant  was  informed  of  the  sale,  and  that  his  son  had  drawn 
an  order  on  hmi  for  $125 ;  to  which  he  answered,  it  was  all  right. 
He  afterwards  found  the  interest  partly  paid,  and  the  evidence 
of  payment  indorsed  upon  it  in  the  handwriting  of  the  defendant. 
These  circumstances  were  proper  and  legal  evidence  from  which 
the  jury  might  infer  an  acceptance." 

It  is  a  sound  principle  of  morality,  which  is  sustained  by  well- 
considered  decisions,  that  one  who  promises  another,  either  in 
writing  or  by  parol,  that  he  will  accept  a  particular  bill  of 
exchange,  and  thereby  induces  him  to  advance  his  money  upon 
such  bill,  in  reliance  upon  his  promise,  shall  be  held  to  make 
good  his  promise.  The  party  advances  his  money  upon  an 
original  promise,  upon  a  valuable  consideration  ;  and  the  promisor 
is,  upon  principle,  bound  to  carry  out  his  undertaking.  Whether 
it  shall  be  held  to  be  an  acceptance,  or  whether  he  shall  be  sub- 
jected in  damages  for  a  breach  of  his  promise  to  accept,  or 
whether  he  shall  be  held  to  be  estopped  from  impeaching  his 
word,  is  a  matter  of  form  merely.  The  result  in  either  event  is 
to  compel  the  promisor  to  pay  the  amount  of  the  bill  with  interest. 
Townley  v.  Sumdel,  2  Pet.  170;  Boyce  v.  Edwards,  4  id.  iii; 
Goodrich  v.  Gordon,  15  Johns.  6;  Scott  v.  Pilkinton,  15  Abb. 
Pr.  280;  Ontario  Bank  v.  Worthington,  12  Wend.  593;  Bissell 
v.  Lewis,  4  Mich.  450;  Williams  v.  Winans,  supra. 

These  principles  settle  the  present  case  against  the  appellants. 

It  certainly  does  not  aid  their  case,  that  after  assuring  the 
bank,  through  the  message  of  Leland  &  Harbach,  that  the  draft 
was  drawn  against  produce  that  day  shipped  to  the  drawees,  and 
that  it  was  drawn  by  the  authority  of  the  firm  (while,  in  fact,  the 
produce  was  shipped  to  and  received  and  sold  by  them),  and  that 
the  bank  in  reliance  upon  this  assurance  discounted  the  bill,  Mr. 


CONTRACTS. 


4oo 


Scudder  should  at  once  have  telegraphed  his  firm  in  St.  Louis 
to  delay  payment  of  the  draft,  and,  by  a  subsequent  telegram, 
should  have  directed  them  not  to  pay  it. 

The  judgment  must  be  affirmed. 

PRITCHARD  V.  NORTON,  1882. 
[106  U.  S.  124.] 

Error  to  the  Circuit  Court  of  the  United  States  for  the 
District  of  Louisiana. 

This  action  was  brought  by  Eliza  D.  Pritchard,  a  citizen  of 
Louisiana,  executrix  of  Richard  Pritchard,  deceased,  against 
Norton,  a  citizen  of  New  York,  in  the  court  below,  upon  a  writing 
obligatory,  of  which  the  following-  is  a  copy : — 

"State  of  New  York, 

"County  of  New  York. 

"Know  all  men  by  these  presents,  that  we.  Henry  S. 
McComb,  of  Wilmington,  State  of  Delaware,  and  Ex  Norton,  of 
the  city  of  New  York,  State  of  New  York,  are  held  and  firmly 
bound,  jointly  and  severally,  unto  Richard  Pritchard,  of  New 
Orleans,  his  executors,  administrators,  and  assigns,  in  the  sum 
of  fifty-five  thousand  ($55,000)  dollars,  lawful  money  of  the 
United  States,  for  the  payment  whereof  we  bind  ourselves,  our 
heirs,  executors,  and  administrators  firmly  by  these  presents. 
Sealed  with  our  seals  and  dated  this  thirtieth  day  of  June.  A.  D. 
eighteen  hundred  and  seventy-four. 

"Whereas  the  aforesaid  Richard  Pritchard  has  signed  an 
appeal  bond  as  one  of  the  sureties  thereon,  jointly  and  severally, 
on  behalf  of  the  defendant,  appellant  in  the  suit  of  J.  P.  Harri- 
son, Jr.  V.  The  New  Orleans,  Jackson,  and  Great  Northern  Rail- 
road Co.,  No.  9261  on  the  docket  of  the  Seventh  District  Court 
for  the  Parish  of  Orleans  : 

"Now.  the  condition  of  the  above  obligation  is  such  that  if 
the  aforesaid  obligors  shall  hold  harmless  and  fully  indemnify  the 
said  Richard  Pritchard  against  all  loss  or  damage  arising  from 
his  liability  as  surety  on  the  said  appeal  bond,  then  this  obligation 
shall  be  null  and  void  ;  otherwise,  shall  remain  in  full  force  and 

eflfect. 

"H.  S.  McCoMB.     [l.  s.] 

"Ex  Norton.  [i..  s.  ]" 

The  appeal  bond  mentioned  in  the  bond  was  executed. 


456  PRIVATE    INTERNATIONAL    LAW. 

A  judginent  was  rendered  on  that  appeal  in  the  Supreme 
Court  of  Louisiana,  May  30,  1876,  against  the  railroad  company, 
in  satisfaction  of  which  Pritchard  became  liable  to  pay,  and  did 
pay,  the  amount,  to  recover  which  this  action  was  brought  against 
Norton.  The  condition  of  this  appeal  bond  was  that  the  company 
"shall  prosecute  its  said  appeal,  and  shall  satisfy  whatever  judg- 
ment may  be  rendered  against  it,  or  that  the  same  shall  be  satisfied 
by  the  proceeds  of  the  sale  of  its  estate,  real  or  personal,  if  it 
be  cast  in  the  appeal ;  otherwise  that  the  said  Pritchard  et  ai, 
sureties,  shall  be  liable  in  its  place."' 

The  defendant  set  up,  by  way  of  defence,  that  the  bond  sued 
on  was  executed  and  delivered  by  him  to  Pritchard  in  the  State 
of  New  York,  and  without  any  consideration  therefor,  and  that 
by  the  laws  of  that  State  it  was  void,  by  reason  thereof. 

There  was  evidence  on  the  trial  tending  to  prove  that  the 
appeal  bond  was  not  signed  by  Pritchard  at  the  instance  or  request 
of  McComb  or  Norton,  and  that  there  was  no  consideration  for 
their  signing  and  executing  the  bond  of  indemnity  passing  at  the 
time,  and  that  the  latter  was  executed  and  delivered  in  New  York. 
There  was  also  put  in  evidence  the  following  provisions  of  the 
Revised  Statutes  of  that  State,  2  Rev.  Stat.  406 : — 

"Sect.  yy.  In  every  action  upon  a  sealed  instrument,  and 
when  a  set-off  is  founded  upon  any  sealed  instrument,  the  seal 
thereof  shall  only  be  presumptive  evidence  of  a  sufficient  con- 
sideration, which  may  be  rebutted  in  the  same  manner  and  to  the 
same  extent  as  if  the  instrument  were  not  sealed. 

"Sect.  78.  The  defence  allowed  by  the  last  section  shall  not 
be  made  unless  the  defendant  shall  have  pleaded  the  same,  or  shall 
have  given  notice  thereof  at  the  time  of  pleading  the  general 
issue,  or  some  other  plea  denying  the  contract  on  which  the 
action  is  brought." 

At  the  request  of  the  defendant  the  Circuit  Court  charged 
the  jury  that  the  indemnifying  bond,  in  respect  to  its  validity  and 
the  consideration  requisite  to  support  it,  was  to  be  governed  by 
the  law  of  New  York,  and  not  of  Louisiana;  and  that  if  they 
believed  from  the  evidence  that  the  appeal  bond  signed  by  Richard 
Pritchard  as  surety  was  not  signed  by  him  at  the  instance  or 
request  of  McComb  and  Norton,  or  either  of  them,  and  that  no 
consideration  passed  between  Pritchard  and  McComb  and  Norton 
for  the  signing  and  execution  of  the  indemnifying  bond  by  them, 
then  that  the  bond  was  void  for  want  and  absence  of  any  con- 


CONTRACTS.  457 

sideration  valid  in  law  to  sustain  it,  and  no  recovery  could  be  had 
upon  it. 

The  plaintiff  requested  the  court  to  charge  the  jury  that  if 
they  found  from  the  evidence  that  the  consideration  for  the 
indemnifying  bond  was  the  obligation  contracted  by  Pritchard 
as  surety  on  the  appeal  bond,  and  that  the  object  of  the  indemni- 
fying bond  was  to  hold  harmless  and  indemnify  Pritchard  from 
loss  or  damage  by  reason  of  or  growing  out  of  said  appeal  bond, 
then  that  the  consideration  for  said  indemnifying  bond  was  good 
and  valid,  and  is  competent  to  support  the  action  upon  the  bond 
for  the  recovery  of  any  such  loss  or  damage  sustained  by  Pritch- 
ard. This  request  the  court  refused.  Exceptions  were  duly  taken 
to  these  rulings,  which  the  plaintiff  now  assigns  for  error,  there 
having  been  a  judgment  for  the  defendant,  which  she  seeks  to 
reverse. 

Mr.  Justice  Matthews,  after  stating  the  case,  delivered 
the  opinion  of  the  court- 
It  is  claimed  on  behalf  of  th*^;  plaintiff'  that  by  the  law  of 
Louisiana  the  pre-existing  liability  of  Pritchard  as  surety  for  the 
railroad  company  would  be  a  valid  consideration  to  support  the 
promise  of  indemnity,  notwithstanding  his  liability  had  been  in- 
curred witliout  any  previous  request  from  the  defendant.  This 
claim  is  not  controverted,  and  is  fully  supported  by  the  citations 
from  the  Civil  Code  of  Louisiana  of  1870,  art.  1893-1960,  and 
the  decisions  of  the  Supreme  Court  of  that  State.  Flood  v. 
Thovias,  5  Mart.  n.  s.  (La.)  560;  N.  O.  Gas  Co.  v.  Paulding,  12 
Rob.  (La.)  378:  A^.  O  &  Carrollion  Railroad  Co.  v.  Chapman, 
8  La.  Ann.  97;  Keaiie  v.  Goldsmith,  Haber  &  Co.,  12  id.  560. 
In  the  case  last  mentioned  it  is  said  that  "the  contract  is,  in  its 
nature,  one  of  personal  warranty,  recognized  by  articles  378  and 
379  of  the  Code  of  Practice."  And  it  was  there  held  that  a  right 
of  action  upon  the  bond  of  indemnity  accrued  to  the  obligee,  when 
his  liability  became  fixed  as  surety  by  a  final  judgment,  without 
pa\ment  on  his  part,  it  being  the  obligation  of  the  defendants 
upon  the  bond  of  indemnity  to  pay  the  judgment  rendered  against 
him,  or  to  furnish  him  the  money  with  which  to  pay  it. 

The  single  question  presented  by  the  record,  therefore,  is 
whether  the  iaw  of  New  York  or  that  of  Louisiana  defines  and 
fixes  the  rights  and  obligations  of  the  parties.  If  the  former 
applies,  ihe  judgment  of  the  court  below  is  correct ;  if  the  latter, 
it  is  erroneous. 


458  PRIVATE    INTERNATIONAL    LAW. 

The  argument  in  support  of  the  judgment  is  simple,  and  may 
be  briefly  stated.  It  is,  that  New  York  is  the  place  of  the  contract, 
both  because  it  was  executed  and  delivered  there,  and  because  no 
other  place  of  performance  being  either  designated  or  necessarily 
implied,  it  was  to  be  performed  there ;  wherefore  the  law  of  New 
York,  as  the  lex  loci  contractus,  in  both  senses,  being  the  lex  loci 
celebrationis  and  lex  loci  solutionis,  must  apply  to  determine  not 
only  the  form  of  the  contract,  but  also  its  validity. 

On  the  other  hand,  the  application  of  the  law  of  Louisiana 
may  be  considered  in  two  aspects :  as  the  lex  fori,  the  suit  having 
been  brought  in  a  court  exercising  jurisdiction  within  its  terri- 
tory and  administering  its  laws ;  and  as  the  lex  loci  solutionis,  the 
obligation  of  the  bond  of  indemnity  being  to  place  the  fund  for 
pavment  in  the  hands  of  the  surety,  or  to  repay  him  the  amount 
of  his  advance,  in  the  place  where  he  was  bound  to  discharge  his 
own  liability. 

It  will  be  convenient  to  consider  the  applicability  of  the  law 
of  Louisiana,  first,  as  the  lex  fori^  and  then  as  the  lex  loci  solu- 
tionis. 

I.  The  lex  fori. 

The  court  below,  in  a  cause  like  the  present,  in  which  its 
jurisdiction  depends  on  the  citizenship  of  the  parties,  adjudicates 
their  rights  precisely  as  should  a  tribunal  of  the  State  of  Louis- 
iana according  to  her  laws;  so  that,  in  that  sense,  there  is  no 
question  as  to  what  law  must  be  administered.  But,  in  case  of 
contract,  the  foreign  law  may,  by  the  act  and  will  of  the  parties, 
-have  become  part  of  their  agreement ;  and,  in  enforcing  this,  the 
lav;  of  the  forum  may  find  it  necessary  to  give  effect  to  a  foreign 
law,  which,  without  such  adoption,  would  have  no  force  beyond 
its  own  territory. 

This,  upon  the  principle  of  comity,  for  the  purpose  of  pro- 
moting and  facilitating  international  intercourse,  and  within  limits 
fixed  by  its  own  public  policy,  a  civilized  State  is  accustomed 
and  considers  itself  bound  to  do;  but,  in  doing  so,  nevertheless 
adheres  to  its  own  system  of  formal  judicial  procedure  and 
remedies.  And  thus  the  distinction  is  at  once  established  between 
the  law  of  the  contract,  which  may  be  foreign,  and  the  law  of 
the  procedure  and  remedy,  which  must  be  domestic  and  local.  In 
respect  to  the  latter  the  foreign  law  is  rejected;  but  how  and 
where  to  draw  the  line  of  precise  classification  it  is  not  always 
easy  to  determine. 

The  principle  is,  that  whatever  relates  merely  to  the  remedy 


CONTRACTS.  459 

and  constitutes  part  of  the  procedure  is  determined  by  the  law 
of  the  forum,  for  matters  of  process  must  be  uniform  in  the  courts 
of  the  same  country ;  but  whatever  goes  to  the  substance  of  the 
obHgation  and  affects  the  rights  of  the  parties,  as  growing  out  of 
the  contract  itself,  or  inhering  in  it  or  attaching  to  it,  is  governed 
by  the  law  of  the  contract. 

The  rule  deduced  by  Mr.  Wharton,  in  his  Conflict  of  Laws, 
as  best  harmonizing  the  authorities  and  effecting  the  most  judici- 
ous result,  and  which  was  cited  approvingly  by  Mr.  Justice  Hunt 
in  Scudder  v.  Union  National  Bank,  91  U.  S.  406,  is,  that  "Obli- 
gations in  respect  to  the  mode  of  their  solemnization  are  subject 
to  the  rule  locus  regit  actum;  in  respect  to  their  interpretation, 
to  the  lex  loci  contractus ;  in  respect  to  their  mode  of  their  per- 
formance, to  the  law  of  the  place  of  their  performance.  Puit  the 
lex  fori  determines  when  and  how  such  laws,  when  foreign,  are 
to  be  adopted,  and,  in  all  cases  not  specified  above,  supplies  the 
applicatory  law."  This,  it  will  be  observed,  extends  the  opera- 
tion of  the  lex  fori  beyond  the  process  and  remedy,  so  as  to 
embrace  the  whole  of  that  residuum  which  cannot  be  referred  to 
other  laws.  And  this  conclusion  is  obviously  just ;  for  whatever 
cannot,  from  the  nature  of  the  case,  be  referred  to  any  other  law, 
must  be  determined  by  the  tribunal  having  jurisdiction  of  the 
litigation,  according"  to  the  law  of  its  own  locality. 

Whether  an  assignee  of  a  chose  in  action  shall  sue  in  liis 
own  name  or  that  of  his  assignor  is  a  technical  question  of  mere 
process,  and  determinable  by  the  law  of  the  forum ;  but  whether 
the  foreign  assignment,  on  which  the  plaintiff  claims  is  valid  at 
all,  or  whether  it  is  valid  against  the  defendant,  goes  to  the  merits 
and  must  be  decided  by  the  law-  in  which  the  case  has  its  legal 
seat.  Wharton,  Conflict  of  Laws,  sects.  735,  736.  Upon  that 
point  Judge  Kent,  in  Lodge  v.  Phelps,  i  Johns.  (N.  Y.)  Cas.  139. 
said:  "If  the  defendant  has  any  defence  authorized  by  the  law 
of  Connecticut,  let  him  show  it,  and  he  will  be  heard  in  one  form 
of  action  as  well  as  in  the  other." 

It  is  to  be  noted,  however,  as  an  important  circumstance, 
that  the  same  claim  may  sometimes  be  a  mere  matter  of  process, 
and  so  determinable  by  the  law  of  the  forum,  and  sometimes  a 
matter  of  substance  going  to  the  merits,  and  therefore  detemiin- 
able  by  the  law  of  the  contract.  That  is  illustrated  in  the  appli- 
cation of  the  defence  arising  upon  the  Statute  of  Limitations.  In 
the  courts  of  England  and  .Xmerica.  that  defence  is  governed  by 
the  law  of  the  forum,  as  being  a  matter  of  mere  procedure;  while 


460  PRIVATE     INTERNATIONAL    LAW. 

in  continental  Europe  the  defence  of  prescription  is  regarded  as 
going  to  the  substance  of  the  contract,  and  therefore  as  govemed 
by  the  law  of  the  seat  of  the  obHgation.  "According  to  the  true 
doctrine,"  says  Savigny,  "the  local  law  of  the  obligation  must 
determine  as  to  the  term  of  prescription,  not  that  of  the  place  of 
the  action;  and  this  rule,  which  has  just  been  laid  down  in  respect 
to  exceptions  in  general,  is  further  confirmed,  in  the  case  of  pre- 
scription, by  the  fact  that  the  various  grounds  on  which  it  rests 
stand  in  connection  with  the  substance  of  the  obligation  itself." 
Private  Inter.  Law,  by  Guthrie,  201.  In  this  view  Westlake  con- 
curs. Private  Inter.  Law  (ed.  1858),  sect.  250.  He  puts  it, 
together  with  the  case  of  a  merger  in  another  cause  of  action,  the 
occurrence  of  which  will  be  determined  by  the  law  of  the  former 
cause,  Bryajis  v.  Dunseth,  i  Mart.  n.  s.  (La.)  412,  as  equal 
instances  of  the  liability  to  termination  inherent  by  the  lex  con- 
tractus. But  notwithstanding  the  contrary  doctrine  of  the  courts 
of  England  and  this  country,  when  the  Statute  of  Limitations  of 
a  particular  country  not  only  bars  the  right  of  action,  but  extin- 
guishes the  claim  or  title  itself,  ipso  facto^  and  declares  it  a  nullity, 
after  the  lapse  of  the  prescribed  period,  and  the  parties  have  been 
resident  within  the  jurisdiction  during  the  whole  of  that  period, 
so  that  it  has  actually  and  fully  operated  upon  the  case,  it  must 
be  held,  as  it  was  considered  by  Mr.  Justice  Story,  to  be  an 
extinguishment  of  the  debt,  wherever  an  attempt  might  be  made 
to  enforce  it.  Conflict  of  Laws,  sect.  582.  That  rule,  as  he  says, 
has  in  its  support  the  direct  authority  of  this  court  in  Shelby  v. 
Guy,  II  Wheat.  361-371  ;  its  correctness  was  recognized  by  Chief 
Justice  Tindal  in  Hither  v.  Steincr,  2  Bing.  N.  C.  202,  211  ;  and 
it  is  spoken  of  by  Lord  Brougham  in  Don  v.  Lippmann,  5  CI.  & 
Fin.  I,  16,  as  "the  excellent  distinction  taken  by  Mr.  Justice 
Story."  Walworth  v.  Routh,  14  La.  Ann.  205.  The  same  prin- 
ciple was  applied  i)y  the  Supreme  Court  of  Ohio  in  the  case  of 
P.  C.  &  St.  L.  Raiki'ay  Co.  v.  Mine's  Admx.,  25  Ohio  St.  629, 
where  it  was  held,  that  under  the  act  which  requires  compensation 
for  causing  death  by  wrongful  act,  neglect,  or  default,  and  gives 
a  right  of  action,  provided  such  action  shall  be  commenced  within 
two  years  after  the  death  of  such  deceased  person,  the  proviso  is 
a  condition  qualifying  the  right  of  action,  and  not  a  mere  limita- 
tion on  the  remedy.    Bonte  v.  Taylor,  24  id.  628. 

The  principle  that  what  is  apparently  mere  matter  of  remedy 
in  some  circumstances,  in  others,  where  it  touches  the  substance 
of  the  controversy,  becomes  matter  of  right,  is  familiar  in  our 


CONTRACTS.  461 

constitutional  jurisprudence  in  the  application  of  that  provision 
of  the  Constitution  which  prohibits  the  passing  by  a  State  of  any 
law  impairino^  the  obligation  of  contracts.  For  it  has  been  uni- 
formly held  that  "any  law  which  in  its  operation  amounts  to  a 
denial  or  obstruction  of  the  rights  accruing  by  a  contract,  though 
professing  to  act  only  on  the  remedy,  is  directly  obnoxious  to  the 
prohibition  of  ihe  Constitution."  McCracken  v.  Hayward,  2 
How.  608,  612;  Cooley,  Const.  Lim.  285. 

Hence  it  is  that  a  vested  right  of  action  is  property  in  the 
same  sense  in  which  tangible  things  are  property,  and  is  equally 
protected  against  arbitrary  interference.  Whether  it  springs 
from  contract  or  from  the  principles  of  the  common  law,  it  is  not 
competent  for  the  legisature  to  take  it  away.  A  vested  right  to 
an  existing  defence  is  equally  protected,  saving  only  those  which 
are  based  on  informalities  not  affecting  substantial  rights,  which  do 
not  touch  the  substance  of  the  contract  and  are  not  based  on 
equity  and  justice.    Cooley,  Const.  Lim.  362-369. 

The  general  rule,  as  stated  by  Story,  is  that  a  defence  or  dis- 
charge, good  by  the  law  of  the  place  where  the  contract  is  made 
or  is  to  be  performed,  is  to  be  held  of  equal  validity  in  every 
other  place  where  the  question  may  come  to  be  litigated.  Conflict 
of  Laws,  sect.  331.  Thus  infancy,  if  a  valid  defence  by  the  lex- 
loci  contractus,  will  be  a  valid  defence  everywhere.  Thompson  v. 
Ketcham,  8  Johns.  (N.  Y.)  189;  Mole  v.  Roberts,  3  Esp.  163.  A 
tender  and  refusal,  good  by  the  same  law.  either  as  a  full  dis- 
charge or  as  a  present  fulfilment  of  the  contract,  will  be  respected 
everywhere.  Warder  v.  Arcll,  2  Wash.  (Va.)  282.  Payment 
in  paper-money  bills,  or  in  other  things,  if  good  by  the  same  law, 
will  be  deemed  a  sufficient  payment  everywhere,  i  Brown,  Ch. 
376;  Searight  v.  Calbraith,  4  Dall.  325;  Bartsch  v.  Afwater,  i 
Conn.  409.  And.  on  the  other  hand,  where  a  payment  by  negoti- 
able bills  or  notes  is,  by  the  lex  loci,  held  to  be  conditional  pay- 
ment only,  it  will  be  so  held  even  in  States  where  such  pavment 
under  the  domestic  law  would  be  held  absolute.  So.  if  by  the  law 
of  the  place  of  a  contract  equitable  defences  are  allowed  in  favor 
of  the  maker  of  a  negotiable  note,  any  subsequent  indorsement 
will  not  change  his  rights  in  regard  to  the  holder.  The  latter 
must  take  it  ami  onere.  Evans  v.  Gray,  12  Mart.  (La.)  475;  Ory 
V.  Winter,  4  Mart.  n.  s.  (La.)  2yj :  Chartres  v.  Cairnes,  id.  1  ; 
Story  Conflict  of  Laws,  sect.  332. 

On  the  other  hand,  the  law  of  the  forum  determines  the  form 
of  the  action,  as  whether  it  shall  be  assumpsit,  covenant,  or  debt. 


462  PRIVATE    INTERNATIONAL    LAW. 

Warren  v.  Lynch,  5  Johns.  (N.  Y.)  239;  Andrews  v.  Herriot, 
4  Cow.  (N.  Y.)  508;  Trasher  v.  Everhart,  3  Gill  &  J.  (Md.)  234; 
Admns  v.  Kers,  i  Bos.  &  Pul.  360;  Bank  of  the  United  States  v. 
Donally,  8  Pet.  361 ;  Douglas  v.  Oldham,  6  N.  H.  150.  In  Le  Roy 
V.  Beard,  8  How.  451,  where  it  was  held  that  assumpsit  and  not 
covenant  was  the  proper  form  of  action  brought  in  New  York 
upon  a  covenant  executed  and  to  be  performed  in  Wisconsin,  and 
by  its  laws  sealed  as  a  deed,  but  which  in  the  former  was  not 
regarded  as  sealed,  it  was  said  by  this  court,  that  it  was  so 
decided  "without  impairing  at  all  the  principle,  that  in  deciding 
on  the  obligation  of  the  instrument  as  a  contract,  and  not  the 
remedy  on  it  elsewhere,  the  law  of  Wisconsin,  as  the  lex  loci  con- 
tractus, must  govern.'"'  It  regulates  all  process,  both  mesne  and 
final.  Ogden  v.  Saunders,  12  Wheat.  213;  Mason  v.  Haile,  id. 
370;  Beers  v.  Haughton,  9  Pet.  329;  Von  Hoffman  v.  City  of 
Quincy,  4  Wall.  535.  It  also  may  admit,  as  a  part  of  its  domestic 
procedure,  a  set-oft"  or  compensation  of  distinct  causes  of  action 
berween  the  parties  to  the  suit,  though  not  admissible  by  the  law 
of  the  place  of  the  contract.  Story,  Conflict  of  Laws,  sect.  574; 
Gihbs  V.  Hozvard,  2  N.  H.  296;  Rnggles  v.  Keeler,  3  Johns.  (N. 
Y.)  263.  But  this  is  not  to  be  confounded,  as  it  was  in  the  case 
Second  National  Bank  of  Cincinnati  v.  Hemingray,  31  Ohio  St. 
168,  with  that  of  a  limited  negotiability,  by  which  the  right  of 
set-off  between  the  original  parties  is  preserved  as  part  of  the  law 
of  the  contract,  notwithstanding  an  assignment.  The  rules  of 
evidence  are  also  supplied  by  the  law  of  the  forum.  Wilcox  v. 
Hunt,  13  Pet.  378;  Yates  v.  Thomson,  3  CI.  &  Fin.  544;  Bain  v. 
Whitehaven,  &c.  Railzvay  Co.,  3  H.  of  L.  Cas.  i  ;  Don  v.  Lipp- 
mann,  5  CI.  &  Fin.  i.  In  Yates  v.  Thomson,  supra,  it  was  decided 
by  the  House  of  Lords  that  in  a  suit  in  a  Scotch  court,  to  adjudge 
the  succession  to  personalty  of  a  descendent  domiciled  in  Eng- 
land, where  it  was  admitted  that  the  English  law  governed  the 
title,  nevertheless  it  was  proper  to  receive  in  evidence,  as  against 
a  will  of  the  decedent,  duly  probated  in  England,  a  second  will 
which  had  not  been  proved  there,  and  was  not  receivable  in  English 
courts  as  competent  evidence,  because  such  a  paper  according  to 
Scottish  law  was  admissible.  In  Hoadley  v.  Northern  Transpor- 
tation Co.,  115  Mass.  304,  it  was  held  that  if  the  law  of  the  place, 
where  a  contract  signed  only  by  the  carrier  is  made  for  the  car- 
riage of  goods,  requires  evidence  other  than  the  mere  receipt  by 
the  shipper  to  show  his  assent  to  its  terms,  and  the  law  of  the 
place  where  the  suit  is  brought  presumes  conclusively  such  assent 


CONTRACTS.  463 

from  acceptance  without  dissent,  the  question  of  assent  is  a  ques- 
tion of  evidence,  and  is  to  be  determined  by  the  law  of  the  place 
where  the  suit  is  brought.  In  a  suit  in  Connecticut  against  the 
indorser  on  a  note  made  and  indorsed  in  New  York,  it  was  held 
that  parol  evidence  of  a  special  agreement,  different  from  that 
imputed  by  law,  would  be  received  in  defence,  although  by  the 
law  of  the  latter  State  no  agreement  different  from  that  which  the 
law  implies  from  a  blank  indorsement  could  be  proved  by  parol. 
Doivner  v.  Chcschorongh,  36  Conn.  39.  And  upon  the  same  prin- 
ciple it  has  been  held  that  a  contract,  valid  by  the  laws  of  the  place 
where  it  is  made,  although  not  in  writing,  will  not  be  enforced 
in  the  courts  of  a  country  where  the  Statute  of  Frauds  prevails, 
unless  it  is  put  in  writing.  Leroux  v.  Brozvn,  12  C.  B.  801.  But 
where  the  law  of  the  forum  and  that  of  the  place  of  the  execution 
of  the  contract  coincide,  it  will  be  enforced,  although  required  to 
be  in  writing  by  the  law  of  the  place  of  performance,  as  was  the 
case  of  Scndder  v.  Union  National  Bank,  91  U.  S.  406,  because 
ihe  form  of  the  contract  is  regulated  by  the  law  of  the  place  of  its 
celebration,  and  the  evidence  of  it  by  that  of  the  forum. 

Williams  v.  Haines,  27  Iowa,  251,  was  an  action  upon  a  note 
executed  in  Maryland,  and,  so  far  as  appears  from  the  report, 
payable  there,  wdiere  the  parties  thereto  then  resided,  and  which 
was  a  sealed  instrument,  according  to  the  laws  of  that  State,  in 
support  of  which  those  laws  conclusively  presumed  a  valid  con- 
sideration. By  the  laws  of  Iowa,  to  such  an  instrument  the 
want  of  consideration  was  allowed  to  be  proved  as  a  defence.  It 
was  held  by  the  Supreme  Court  of  that  State,  in  an  opinion  de- 
livered by  Chief  Justice  Dillion,  that  the  law  of  Iowa  related  to 
the  remedy  merely,  without  impairing  the  obligation  of  the  con- 
tract, and  the  lex  fori,  must  govern  the  case.  He  said  :  "Respect- 
mg  what  shall  be  good  defences  to  actions  in  this  State,  its  courts 
must  administer  its  own  laws  and  not  those  of  other  States.  The 
common-law  rules  do  not  so  inhere  in  the  contract  as  to  have  the 
portable  quality  ascribed  to  them  by  the  plaintiff's  counsel,  much 
less  can  they  operate  to  override  the  plain  declaration  of  the  legis- 
lative will."  The  point  of  this  decision  is  incorporated  by  Mr. 
Wharton  into  the  text  of  his  Treatise  on  the  Conflict  of  Laws, 
sect.  788,  and  the  case  itself  is  referred  to  in  support  of  it.  He 
deduces  tlie  same  conclusion  from  those  cases,  already  referred 
to,  which  declare  that  assumpsit  is  the  only  form  of  action  that 
can  be  brought  upon  an  mstrument  which  is  not  under  seal, 
according  to  the  laws  of  the  forum,  although  by  the  law  of  the 


464  PRIVATE     INTERNATIONAL    LAW. 

place  where  it  was  executed,  or  was  to  be  performed,  it  would  be 
regarded  as  under  seal,  in  which  debt  or  covenant  would  lie,  on 
the  ground  that  a  plea  of  want  or  failure  of  consideration  is 
recognized  as  a  defence  in  all  actions  of  assumpsit.  Wharton, 
Conflict  of  Laws,  sect.  747. 

If  the  proposition  be  sound,  its  converse  is  equally  so ;  and 
the  law  of  a  place  where  a  suit  may  happen  to  be  brought  may 
forbid  the  impeachment  of  a  contract,  for  want  of  a  valid  con- 
sideration, which,  by  the  law  of  the  place  of  the  contract,  might 
be  declared  invalid  on  that  account. 

We  cannot,  however,  accept  this  conclusion.  The  question 
of  consideration,  whether  arising  upon  the  admissibility  of  evi- 
dence or  presented  as  a  point  in  pleading,  is  not  one  of  procedure 
and  remedy.  It  goes  to  the  substance  of  the  right  itself,  and 
belongs  to  the  constitution  of  the  contract.  The  difference  be- 
tween the  law  of  Louisiana  and  that  of  New  York,  presented 
in  this  case,  is  radical,  and  gives  rise  to  the  inquiry,  what, 
according  to  each,  are  the  essential  elements  of  a  valid  contract, 
determinable  only  by  the  law  of  its  seat ;  and  not  that  other, 
what  remedy  is  provided  by  the  law  of  the  place  where  the  suit 
has  been  brought  to  recover  for  the  breach  of  its  obligation. 

On  this  point,  what  was  said  in  The  Gaetano  &  Maria,  7 
P.  D.  137,  is  pertinent.  In  that  case  the  question  was  whether 
the  English  law,  which  was  the  law  of  the  forum,  or  the  Italian 
law,  which  was  the  law  of  the  flag,  should  prevail,  as  to  the 
validity  of  a  hypothecation  of  the  cargo  by  the  master  of  a  ship. 
It  was  claimed  that  because  the  matter  to  be  proved  was,  whether 
there  was  a  necessity  which  justified  it,  it  thereby  became  a 
matter  of  procedure,  as  being  a  matter  of  evidence.  Lord  Justice 
Brett  said:  "Now,  the  manner  of  proving  the  facts  is  matter  of 
evidence,  and,  to  my  mind,  is  matter  of  procedure,  but  the  facts 
to  be  proved  are  not  matters  of  procedure ;  they  are  matters  with 
which  the  procedure  has  to  deal. 

It  becomes  necessary,  therefore,  to  consider  the  applicability 
of  the  law  of  Louisiana  as — 

2.  The  lex  loci  solutionis. 

The  phrase  lex  loci  contractus  is  used,  in  a  double  sense,  to 
mean,  sometimes,  the  law  of  the  place  where  a  contract  is  entered 
into;  sometimes,  that  of  the  place  of  its  performance.  And  when 
it  is  employed  to  describe  the  law  of  the  seat  of  the  obligation, 
it  is,  on  that  account,  confusing.     The  law  we  are  in  search  of, 


CONTRACTS.  465 

which'  is  to  decide  upon  the  nature,  interpretation,  and  vahdity 
of  the  engagement  in  question,  is  that  which  the  parties  have, 
either  expressly  or  presumptively,  incorporated  into  their  contract 
as  constituting  its  ohligation.  It  has  never  been  better  described 
than  it  was  incidentally  by  Mr.  Chief  Justice  Marshall  in  Way- 
man  V.  Southard,  lo  Wheat,  i,  48,  where  he  defined  it  as  a  prin- 
ciple of  universal  law, — "The  principle  that  in  every  forum  a  con- 
tract is  governed  by  the  law  with  a  view  to  which  it  was  made." 
The  same  idea  has  been  expressed  by  Lord  Mansfield  in  Robinson 
V.  Bland,  2  Burr.  1077,  1078.  "The  law  of  the  place,"  he  said, 
"can  never  be  the  rule  where  the  transaction  is  entered  into  with 
an  express  view  to  the  law  of  another  country,  as  the  rule  by  which 
it  is  to  be  governed."  And  in  Lloyd  v.  Guibert,  Law  Rep.  i  Q.  B. 
115,  120,  in  the  Court  of  Exchequer  Chamber,  it  was  said  that 
"It  is  necessary  to  consider  by  what  general  law  the  parties  in- 
tended that  the  transaction  should  be  governed,  or  rather,  by  what 
general  law  it  is  just  to  presume  that  they  have  submitted 
themselves  in  the  matter."  Lc  Breton  v.  Miles,  8  Paige  (N. 
Y.),26i. 

It  is  upon  ibis  ground  that  the  presumption  rests,  that  the 
contract  is  to  be  performed  at  the  place  where  it  is  made,  and  to 
be  governed  by  its  laws,  there  being  nothing  in  its  terms,  or  in 
the  explanatory  circumstances  of  its  execution,  inconsistent  with 
that  intention. 

So,  Pillimore  says :  "It  is  always  to  be  remembered  that  in 
obligations  it  is  the  will  of  the  contracting  parties,  and  not  the 
law,  which  fixes  the  place  of  fulfilment — whether  that  place  be 
fixed  by  express  words  or  by  tacit  implication — as  the  place  to  the 
jurisdiction  of  which  the  contracting  parties  elected  to  submit 
themselves."    4  Int.  Law,  469. 

The  same  author  concludes  his  discussion  of  the  particular 
topic  as  follows :  "As  all  the  foregoing  rules  rest  upon  the  pre- 
sumption that  the  obligor  has  voluntarily  submitted  himself  to  a 
particular  local  law,  that  presumption  may  be  rebutted,  either  by 
an  express  declaration  to  the  contrary,  or  by  the  fact  that  the 
obligation  is  illegal  b}-  that  particular  law,  though  legal  by  another. 
The  parties  cannot  be  presumed  to  have  contemplated  a  law  which 
would  defeat  their  engagements."     4  Int.  Law,  sect,  dclin'.   pp. 

470,  471- 

This  rule,  if  universallv  applicable,  which  perhaps  it  is  not, 
though  founded  on  the  maxim,  ;//  res  magis  valeaf,  quain  pereat, 
would  be  decisive  of  the  present   controversy,  as  conclusive  of 
30  ^ 


466  PRIVATE    INTERNATIONAL    LAW. 

the  question  of  the  appHcation  of  the  law  of  Louisiana,  by  which 
alone  the  undertaking  of  the  obligor  can  be  upheld. 

At  all  events,  it  is  a  circumstance,  highly  persuasive  in  its 
character,  of  the  presumed  intention  of  the  parties,  and  entitled 
to  prevail,  unless  controlled  by  more  express  and  positive  proofs 
of  a  contrary  intent. 

It  was  expressly  referred  to  as  a  decisive  principle  in  Bell  v. 
Packard,  69  Me.  105,  although  it  cannot  be  regarded  as  the 
foundation  of  the  judgment  in  that  case.  Milliken  v.  Pratt,  125 
Mass.  374. 

If  now  we  examine  the  terms  of  the  bond  of  indemnity,  and 
the  situation  and  relation  of  the  parties,  we  shall  find  conclusive 
corroboration  of  the  presumption,  that  the  obligation  was  entered 
into  in  view  of  the  laws  of  Louisiana. 

The  antecedent  liability  of  Pritchard,  as  surety  for  the  rail- 
road company  on  the  appeal  bond,  was  confessedly  contracted  in 
that  State,  according  to  its  laws,  and  it  was  there  alone  that  it 
could  be  performed  and  discharged.  Its  undertaking  was,  that 
Pritchard  should,  in  certain  contingencies,  satisfy  a  judgment  of 
its  courts.  That  could  be  done  only  within  its  territory  and 
according  to  its  laws.  The  condition  of  the  obligation,  which  is 
the  basis  of  this  action,  is,  that  McComb  and  Norton,  the  obligors, 
shall  hold  harmless  and  fully  indemnify  Pritchard  against  all  loss 
or  damage  arising  from  his  liability  as  surety  on  the  appeal  bond. 
A  judgment  was,  in  fact,  rendered  against  him  on  it  in  Louisiana. 
There  was  but  one  way  in  which  the  obligors  in  the  indemnity 
bond  could  perfectly  satisfy  its  warranty.  That  was,  the  moment 
the  judgment  was  rendered  against  Pritchard  on  the  appeal  bond, 
to  come  forward  in  his  stead,  and,  by  payment,  to  extinguish  it. 
He  was  entitled  to  demand  this  before  any  payment  by  himself, 
and  to  require  that  the  fund  should  be  forthcoming  at  the  place 
where  otherwise  he  could  be  required  to  pay  it.  Even  if  it  should 
be  thought  that  Pritchard  was  bound  to  pay  the  judginent  re- 
covered against  himself,  before  his  right  of  recourse  accrued 
upon  the  bond  of  indemnity,  nevertheless  he  was  entitled  to  be 
reimbursed  the  amount  of  his  advance  at  the  same  place  where 
he  had  been  required  to  make  it.  So  that  it  is  clear,  beyond  any 
doubt,  that  the  obligation  of  the  indemnity  was  to  be  fulfilled  in 
Louisiana,  and,  consequently,  is  subject,  in  all  matters  affecting 
its  construction  and  validity,  to  the  law  of  that  locality. 

This  construction  is  abundantly  sustained  by  the  authority 
of  judicial  decisions  in  similar  cases. 


CONTRACTS.  467 

In  Irvine  v.  Barret,  2  Grant's  (Pa.)  Cas.  73,  it  was  decided 
that  where  a  security  is  given  in  pursuance  of  a  decree  of  a  court 
of  justice,  it  is  to  be  construed  according  to  the  intention  of  the 
tribunal  which  directed  its  execution,  and,  in  contemplation  of  law, 
is  to  be  performed  at  the  place  where  the  court  exercises  its 
jurisdiction ;  and  that  a  bond  given  in  another  State,  as  collateral 
to  such  an  obligation,  is  controlled  by  the  same  law  which  controls 
the  principal  indebtedness.  In  the  case  of  Penobscot  &  Kennebec 
Railroad  Co.  v.  Bart  left,  12  Gray  (Mass),  244,  the  Supreme 
Judicial  Court  of  Massachusetts  decided  that  a  contract  made  in 
that  State  to  subscribe  to  shares  in  the  capital  stock  of  a  railroad 
corporation  established  by  the  laws  of  another  State,  and  having 
their  road  and  treasury  there,  is  a  contract  to  be  performed  there, 
and  is  to  be  construed  by  the  laws  of  that  State.  In  Lannsse  v. 
Barker,  3  Wheat.  loi,  146,  this  court  declared  that  ''where  a 
general  authority  is  given  to  draw  bills  from  a  certain  place,  on 
account  of  advances  there  made,  the  undertaking  is  to  replace 
the  money  at  that  place." 

The  case  of  Cox  v.  United  States,  6  Pet.  172,  was  an  action 
upon  the  official  bond  of  a  navy  agent.  The  sureties  contended 
that  the  United  States  were  bound  to  divide  their  action,  and 
take  judgment  against  each  surety  only  for  his  proportion  of  the 
sum  due,  according  to  the  laws  of  Louisiana,  considering  it  a 
contract  made  there,  and  to  be  governed  in  this  respect  by  the 
law  of  that  State.  The  court,  however,  said:  "But  admitting 
the  bond  to  have  been  signed  at  New  Orleans,  it  is  very  clear  that 
the  obligations  imposed  upon  the  parties  thereby  looked  for  its 
execution  to  the  city  of  Washington.  It  is  immaterial  where  the 
services  as  navy  agent  were  to  be  performed  by  Hawkins.  His 
accountability  for  non-performance  was  to  be  at  the  seat  of  gov- 
ernment. He  was  bound  to  account,  and  the  sureties  undertook 
that  he  should  account  for  all  public  moneys  received  by  him, 
with  such  officers  of  the  government  of  the  United  States  as  are 
duly  authorized  to  settle  and  adjust  his  accounts.  The  bond  is 
given  with  reference  to  the  laws  of  the  United  States  on  that 
subject.  And  such  accounting  is  required  to  be  with  the  Treasury 
Department  at  the  seat  of  government ;  and  the  navy  agent  is 
bound  by  the  very  terms  of  the  bond  to  pay  over  such  sum  as 
may  be  found  due  to  the  United  States  on  such  settlement ;  and 
such  paying  over  must  be  to  the  Treasury  Department,  or  in  such 
manner  as  shall  be  directed  by  the  secretary.  The  bond  is.  there- 
fore, in  every  point  of  view  in  which  it  can  be  considered,  a  con- 


468  PRIVATE    INTERNATIONAL    LAW. 

tract  to  be  executed  at  the  city  of  Washington,  and  the  liability 
of  the  parties  must  be  governed  by  the  rules  of  the  common  law." 
This  decision  was  repeated  in  Duncan  v.  United  States,  7  Pet. 

435- 

These  cases  were  relied  on  by  the  Supreme  Court  of  New 

York  in  Commonwealth  of  Kentucky  v.  Bassford,  6  Hill  (N.  Y.), 

526.     That  was  an  action  upon  a  bond  executed  in  New  York 

conditioned  for  the  faithful  performance  of  the  duties  enjoined  by 

a  law  of  Kentucky  authorizing  the  obligees  to  sell  lottery  tickets 

for  the  benefit  of  a  college  in  that  State.     It  was  held  that  the 

stipulations  of  the  bond  were  to  be  performed  in  Kentucky,  and 

that,  as  it  was  valid  by  the  laws  of  that  State,  the  courts  of  New 

York  would  enforce  it,  notwithstanding  it  would  be  illegal  in  that 

State. 

Boyle  V.  Zacharie,  6  Pet.  635,  is  a  direct  authority  upon  the 
point.  There  Zacharie  and  Turner  were  resident  merchants  at 
New  Orleans,  and  Boyle  at  Baltimore.  The  latter  sent  his  ship 
to  New  Orleans,  consigned  it  to  Zacharie  and  Turner,  where  she 
arrived,  and,  having  landed  her  cargo,  the  latter  procured  a  freight 
for  her  to  Liverpool.  When  she  was  ready  to  sail  she  was 
attached  by  process  of  law  at  the  suit  of  certain  creditors  of 
Boyle,  and  Zacharie  and  Turner  procured  her  release  by  becoming 
security  for  Boyle  on  the  attachment.  Upon  information  of  the 
facts,  Boyle  promised  to  indemnify  them  for  any  loss  they  might 
sustain  on  that  account.  Judgment  was  rendered  against  them  on 
the  attachment  bond,  which  they  were  compelled  to  pay,  and  to 
recover  the  amount  so  paid  they  brought  suit  in  the  Circuit 
Court  of  Maryland  against  Boyle  upon  his  promise  of  indemnity. 
A  judgment  was  rendered  by  confession  in  that  cause,  and  a  bill 
in  equity  was  subsequently  filed  to  enjoin  further  proceedings  on 
it,  in  the  course  of  which  various  questions  arose,  among  them, 
whether  the  promise  of  indemnity  was  a  Maryland  or  Louisiana 
contract.  Mr.  Justice  Story,  delivering  the  opinion  of  the  court, 
said :  "Such  a  contract  would  be  understood  by  all  parties  to  be  a 
contract  made  in  the  place  where  the  advance  was  to  be  made, 
and  the  payment,  unless  otherwise  stipulated,  would  also  be 
understood  to  be  made  there ;"  "that  the  contract  would  clearly 
refer  for  its  execution  to  Louisiana. 

The  very  point  was  also  decided  by  this  court  in  Bell  v. 
Bruen,  i  How.  169.  That  was  an  action  upon  a  guaranty  written 
by  the  defendant  in  New  York,  addressed  to  the  plaintiffs  in 
London,  who,  at  the  latter  place,  had  made  advances  of  a  credit 


CONTRACTS.  469 

to  Thorn.  The  operative  language  of  the  guaranty  was,  "that 
you  may  consider  this,  as  well  as  any  and  every  other  credit 
you  may  open  in  his  favor,  as  being  under  my  guaranty."  The 
court  said :  "It  was  an  engagement  to  be  executed  in  England, 
and  must  be  construed  and  have  effect  according  to  the  laws  of 
that  country,"  citing  Bank  of  United  States  v.  Daniel,  12  Pet. 
54.  As  the  money  was  advanced  in  England,  the  guaranty 
required  that  it  should  be  replaced  there,  and  that  is  the  precise 
nature  of  the  obligation  in  the  present  case.  Pritchard  could 
onl}  be  indemnified  against  loss  and  damage  on  account  of  his 
liability  on  the  appeal  bond,  by  having  funds  placed  in  his  hands 
in  Louisiana  wherewith  to  discharge  it,  or  by  being  repaid  there 
the  amount  of  his  advance.  To  the  same  effect  is  Woodhull  v. 
Wagner,  Baldw.  296. 

We  do  not  hesitate,  therefore,  to  decide  that  the  bond  of 
indemnity  sued  on  was  entered  into  with  a  view  to  the  law  of 
Louisiana  as  the  place  for  the  fulfilment  of  its  obligation ;  and 
that  the  question  of  its  validity,  as  depending  on  the  character 
and  sufficiency  of  the  consideration,  should  be  determined  by  the 
law  of  Louisiana,  and  not  that  of  New  York.  For  error  in  its  rul- 
ings on  this  point,  consequently,  the  judgment  of  the  Circuit 
Court  is  reversed,  with  directions  to  grant  a  new  trial. 

New  trial  ordered. 


CHAPTER  XIV. 

CONTRACTS.— [  Continued.  ] 

AKERS  V.  DEMOND,   1869. 

[103  Mass.  318.] 

Wells,  J.  The  defence  to  this  suit  is,  that  the  bills  of  ex- 
change are  void  for  usury,  under  the  laws  of  New  York,  where 
they  were  first  negotiated.  The  statute  of  New  York,  Rev.  Sts. 
part  2,  c.  4,  tit.  3,  §  5,  declares  such  securities  void  "whereupon 
or  whereby  there  shall  be  reserved  or  taken  or  secured,  or  agreed 
to  be  reserved  or  taken,"  a  greater  rate  of  interest  than  seven 
per  cent.  The  superior  court  ruled  that,  upon  the  testimony 
offered,  no  defence  was  established;  and  instructed  the  jury  to 
return  a  verdict  for  the  plaintiffs.  The  testimony  is  reported  for 
our  consideration,  so  far  as  admissible  and  competent,  subject 
to  the  several  objections  made  thereto  by  the  plaintiffs. 

1.  Conversations  between  the  drawer  and  first  indorser  of  the 
bill  are  competent,  so  far  as  they  relate  to  and  form  part  of  the 
transactions  of  indorsing  and  negotiating  the  paper  and  dispos- 
ing of  the  proceeds. 

2.  The  conversation  between  Reed  and  one  of  the  plaintiffs, 
in  regard  to  the  rate  of  discount  charged  by  them  upon  the  bills, 
was  competent  to  show  that  fact.  It  was  no  part  of  any  nego- 
tiation for  an  adjustment,  although  occurring  at  an  interview  for 
that  purpose,  but  was  an  independent  statement  of  a  collateral 
fact. 

3.  The  refusal  of  William  H.  Russell  to  answer  the  question, 
whether  certain  statements  made  by  him  at  the  time  he  nego- 
tiated the  bills  to  the  plaintiffs,  and  which  had  been  called  for 
by  two  previous  questions,  were  true  or  false,  is  not  a  ground 
for  rejecting  the  whole  deposition.  If  the  purpose  of  the  in- 
quiry was  to  prove  what  the  facts  were  in  those  particulars,  it 
should  have  been  made  by  questions  directly  as  to  those  facts. 
If  the  purpose  was  to  show  false  representations  made  at  that 
time,  it  was  immaterial  to  the  issue.  The  question  being  imper- 
tinent, the  answer  is  excusable. 

4.  We  know  of  no  rule  of  law  or  of  practice  which  forbids  a 


CONTRACTS.  471 

second  or  supplementary  deposition  of  the  same  witness  to  be 
taken,  either  for  the  proof  of  additional  facts,  or  to  supply  omis- 
sions in  the  answers  to  the  interrogatories  of  the  first  commission. 

5.  The  objection  that  certain  interrogatories  are  leading  is  an 
objection  to  the  form  merely,  and  cannot  be  taken  for  the  first 
time  when  the  deposition  is  offered  in  court. 

6.  The  drawer  and  indorser  are  competent  witnesses  to  prove 
the  usury ;  the  plaintiffs  not  being  innocent  indorsers,  but  parties 
to  the  usury. 

7.  For  the  same  reason,  the  defence  is  not  precluded  by  the 
statute  of  Massachusetts  of  1863,  c.  242. 

The  testimony  thus  held  to  be  admissible  and  competent 
tends  to  prove  that  the  bills  in  suit  were  drawn  by  Reed  and  in- 
dorsed by  William  H.  Russell,  the  payee,  in  New  York,  and 
accepted  by  the  defendant  in  Boston,  being  upon  their  face 
addressed  to  him  there.  Both  the  acceptance  and  the  indorse- 
ment were  for  the  accommodation  of  Reed.  The  possession  of 
collateral  security,  whether  subsequent  or  at  the  time,  does  not 
change  the  character  of  the  acceptance  or  the  relations  of  the 
parties.  Dozve  v.  Schutt,  2  Denio,  621.  After  the  return  of  the 
acceptances  to  Reed,  by  an  arrangement  between  him  and  the 
nominal  payee,  the  latter  procured  the  bills  to  be  discounted  by 
the  plaintiffs,  at  the  rate  of  one  and  a  half  per  cent,  a  month. 
The  proceeds  of  one  of  the  bills  were  retained  by  William  H. 
Russell,  the  payee,  as  a  loan  from  Reed,  and  the  proceeds  of  the 
other  handed  over  by  him  to  Reed. 

As  the  case  is  now  presented,  in  the  absence  of  controlling 
testimony  on  the  part  of  the  plaintiffs,  the  foregoing  statement 
must  be  taken  as  the  result  of  the  evidence.  It  shows  that  the 
transaction  by  which  the  plamtiffs  became  holders  of  the  bills 
was  the  original  negotiation  of  the  paper ;  a  loan  upon  discount, 
and  not  a  m.ere  sale  of  the  bills.  They  are  therefore  open  to 
the  defence  of  usury.  This  is  so  clearly  shown  to  be  the  law 
of  New  York,  by  the  decisions  of  the  courts  of  that  state  referred 
to  in  Ayer  v.  Tilden,  15  Gray,  178,  as  to  require  no  further 
citations. 

The  defendant  is  entitled  to  set  up  the  usury,  although  not 
paid  by  himself,  and  although  the  loan  was  not  made  to  him 
nor  on  his  account.  Van  Scliaack  v.  Stafford,  \2  Pick.  565. 
Dunscomb  v.  Bunker,  2  Met.  8.  Cook  v.  Littlcficld,  5  Selden, 
279.    Clark  V.  SissoH,  22  N.  Y.  312. 

The  difficult  question  in  the  case  arises  from  the  fact  that  the 


472  PRIVATE     INTERNATIONAL    LAW. 

paper  was  made  payable  in  Boston.  It  is  contended  that  the 
contract  of  the  acceptor  is  to  be  governed  by  the  laws  of  the 
place  where  the  bills  are  made  payable.  The  general  principle 
is,  that  the  law  of  the  place  of  performance  is  t!he  law  of  the 
contract.  This  rule  applies  to  the  operation  and  effect  of  the 
contract,  and  to  the  rights  and  obligations  of  the  parties  under 
it.  But  the  question  of  its  validity,  as  affected  by  the  legality 
of  the  consideration,  or  of  the  transaction  upon  which  it  is 
founded,  and  in  which  it  took  its  inception  as  a  contract,  must 
be  determined  by  the  law  of  the  state  where  that  transaction 
was  had.  No  other  law  can  apply  to  it.  Usury,  in  a  loan 
effected  elsewhere,  is  no  offence  against  the  laws  of  Massachu- 
setts. In  a  suit  upon  a  contract  founded  on  such  a  loan,  the 
penalty  for  usury  could  not  be  set  up  in  defence,  under  statutes 
formerly  in  force  in  this  Commonwealth.  Neither  can  a  penalty, 
as  a  partial  defence,  authorized  by  the  laws  of  one  state,  be 
applied  or  made  effective  in  the  courts  of  another  state.  Gale  v. 
Eastman,  y  Met.  14.  Such  penal  laws  can  be  administered  only 
in  the  state  where  they  exist.  But  when  a  usurious  or  other 
illegal  consideration  is  declared  by  the  laws  of  any  state  to  be 
incapable  of  sustaining  any  valid  contract,  and  all  contracts 
arising  therefrom  are  declared  void,  such  contracts  are  not  only 
void  in  that  state,  but  void  in  every  state  and  everywhere.  They 
never  acquire  a  legal  existence.  Contracts  founded  on  usurious 
transactions  in  the  state  of  New  York  are  of  this  character. 
Van  Schaack  v.  Stafford,  12  Pick.  565.  Dunscomh  v.  Bunker, 
2  Met.  8.  The  fact  that  the  bills  now  in  suit  were  accepted  in 
Boston  and  were  payable  there  does  not  exempt  them  from  this 
operation  of  the  laws  of  New  York.  They  were  mere  "nude 
pacts,"  with  no  legal  validity  or  force  as  contracts,  until  a  con- 
sideration was  paid.  The  only  consideration  ever  paid  was  the 
usurious  loan  made  by  these  plaintiffs  in  New  York.  That  then 
was  the  legal  inception  of  the  alleged  contracts.  Little  v.  Rogers, 
I  Met.  108.  Cook  V.  Lit  tie  field,  5  Selden,  279.  Clark  v.  Sisson, 
22  N.  Y.  342.  Achy  v.  Rapelye,  i  Hill,  i.  By  the  statutes  of 
New  York,  that  transaction  was  incapable  of  furnishing  a  legal 
consideration ;  and,  so  far  as  the  bills  depend  upon  that,  they 
are  absolutely  void.  The  original  validity  of  such  a  contract 
must  be  determined  by  the  law  of  the  state  in  which  it  is  first 
negotiated  or  delivered  as  a  contract.  Hanriek  v.  Andreivs,  9 
Porter,  9.  Andreivs  v.  Pond,  13  Pet.  65.  Miller  v.  Tiffany,  i 
Wallace,  298.    Lee  v.  Selleck,  33  N.  Y.  615. 


CONTRACTS.  473 

There  is  no  pretence  that  a  discount  of  one  and  a  half  per 
cent,  a  month  was  justifiable  by  reason  of  any  added  exchange 
between  New  York  and  Boston ;  nor  that  it  was  otherwise  than 
usurious,  if  any  amount  of  charge  upon  paper  payable  else- 
where than  in  New  York  would  be  usurious  there.  It  has  often 
been  held,  in  states  where  restrictions  upon  the  rate  of  interest 
are  maintained,  that  it  is  not  usury  to  charge  upon  negotiable 
paper  whatever  is  the  lawful  rate  of  interest  at  the  place  where 
the  paper  is  payable,  although  greater  than  the  rate  alowable 
where  the  negotiation  takes  place.  But  if  the  paper  is  so  made 
for  the  purpose  of  enabling  the  larger  rate  to  be  taken,  or  the 
greater  rate  is  received  with  intent  to  evade  the  statutes  relating 
to  usury,  and  not  in  good  faith  as  the  legitimate  proceeds  of  the 
contract,  it  is  held  to  be  usury.  So  also,  if  a  greater  rate  is 
taken  than  is  allowed  by  the  law  of  either  state,  it  is  usury. 
Such  a  rate  necessarily  implies  an  intent  to  disregard  the  statutes 
restricting  interest.  Andrea's  v.  Pond,  13  Pet.  65.  Miller  v. 
Tiffany,  i  Wallace,  298.  The  'legal  rate  of  interest  or  discount 
in  Massachusetts  is  six  per  cent,  per  annum;  and,  at  the  date  of 
the  negotiation  of  these  bills,  a  greater  rate  than  six  per  cent,  was 
usurious  and  unlawful. 

It  follows,  from  these  considerations,  that,  upon  the  evidence 
as  it  now  stands  upon  the  part  of  the  defendant,  the  transaction, 
upon  which  alone  the  bills  in  suit  must  depend  for  a  considera- 
tion to  give  them  validity  as  contracts,  was  illegal,  and  such  as, 
under  the  laws  of  New  York,  renders  them  utterly  void.  No 
action,  therefore,  can  be  maintained  upon  them  in  the  courts  of 
Massachusetts,  unless  the  effect  of  this  evidence  be  in  some  way 
overcome  or  controlled.  The  verdict  for  the  plaintiflf  must  be 
set  aside,  and  a  New  trial  granted. 

MILLER  V.  TIFFANY,   1863. 

[I  Wall.  (U.S.)  298.]      * 

"The  general  principle  in  relation  to  contracts  made  in  one 
place  to  be  performed  in  another  is  well  settled.  They  are  to  be 
governed  by  he  law  of  the  place  of  performance,  and  if  the  in- 
terest allowed  by  the  law  of  the  place  of  performance  is  higher 
than  that  permitted  at  the  place  of  contract,  the  parties  may 
stipulate  for  the  higher  interest  without  incurring  the  penalties 
of  usury."  Andrews  v.  Fond.  13  Peters,  yy,  78;  Curtis  et  al.  v. 
Leavitt,  15  N.  Y.  92;  Berrien  v.  Wright,  26  Barbour,  213.     The 


474  PRIVATE    INTERNATIONAL    LAW. 

converse  of  this  proposition  is  also  well  settled.  If  the  rate  of 
interest  be  higher  at  the  place  of  the  contract  than  at  the  place 
of  performance,  the  parties  may  lawfully  contract  in  that  case 
also  for  the  higher  rate.  Dcpeau  v.  Humphrey,  20  How.  i ; 
Chapman  v.  Robinson,  6  Paige,  634. 

These  rules  are  subject  to  the  qualification,  that  the  parties 
act  in  good  faith,  and  that  the  form  of  the  transaction  is  not 
adopted  to  disguise  its  real  character.  The  validity  of  the  con- 
tract is  determined  by  the  law  of  the  place  where  it  is  entered 
into.  Whether  void  or  valid  there,  it  is  so  everywhere.  Andrcius 
V.  Pond,  13  Peters,  78;  Mix  et  al.  v.  The  Madison  Ins.  Co.,  11 
Indiana,  117;  Corcoran  &  Riggs  v.  Poivers  et  al.,  6  Ohio  State, 
19. 

.    y      FESSENDEN  v.  TAFT,  1888. 
[65  N.  H.  39] 

Bill  in  Equity,  to  foreclose  a  mortgage  of  land  in  New 
Hampshire,  given  to  secure  a  promissory  note  for  $4,000,  made 
in  Massachusetts  by  George  Taft,  and  payable  to  the  plaintiff, 
both  Taft  and  the  plaintiff  being  at  the  time  residents  of  Massa- 
chusetts. Facts  found  by  a  referee.  The  consideration  for  the 
note  was  in  part  a  prior  indebtedness  of  $2,200  from  said  Taft 
to  the  plaintiff,  and  it  was  agreed  that  the  balance  of  $1,800 
should  be  retained  by  the  plaintiff  until  the  release  of  an  attach- 
ment upon  the  premises  made  in  a  suit  brought  by  one  Roberts 
against  said  Taft.  Afterwards,  said  Roberts  having  prevailed 
in  the  suit,  the  plaintiff  paid  him  the  $1,800,  and  the  attachment 
was  dissolved. 

In  pursuance  of  a  verbal  agreement  between  said  Taft  and 
the  plaintiff,  interest  was  reckoned  and  paid  on  the  note  at  various 
rates  higher  than  six  per  cent,  during  various  periods  ending  April 
28,  1883,  when  the  last  payment  was  made.  The  Massachusetts 
Public  Statutes,  c.  yy,  s.  3,  provide  as  follows :  "When  there  is  no 
agreement  for  a  different  rate,  the  interest  of  money  shall  be  at 
the  rate  of  six  dollars  upon  each  one  hundred  dollars  for  a  year, 
but  it  shall  be  lawful  to  pay,  reserve,  or  contract  for  any  rate  of 
interest  or  of  discount ;  but  no  greater  rate  than  that  before  men- 
tioned shall  be  recovered  in  any  action,  unless  the  agreement  to 
pay  such  greater  rate  is  in  writing." 

The  defendant,  James  Taft,  claims  to  own  one  undivided  half 
of  the  "Jordan  lot,''  which  is  part  of  the  premises  in  controversy, 


CONTRACTS.  475 

together  with  tlie  barn  on  the  lot.  Tlie  land  was  paid  for  George 
and  James  Taft,  James  paying  one-half,  but  when  did  not  appear. 

The  barn  on  the  lot  was  built  by  the  firm  of  James  Taft  &  Co., 
which  firm  was  composed  of  James,  George,  and  Albert  Taft,  and 
was  sold  on  the  decease  of  Albert  Taft,  as  personal  property,  by 
the  surviving  partners,  and  purchased  by  James  Taft,  who  has 
since  occupied  it.     The  referee  finds  that  it  is  personal  property. 

Some  evidence  was  introduced  by  the  defendants  to  show  title 
in  James  TafL  by  adverse  possession  to  one  undivided  half  of  the 
"Jordan  lot,"  and  the  referee  reported  certain  facts  to  the  court, 
submitting  the  question  whether  upon  these  facts  such  title  had 
been  acquired. 

The  plaintiff  v;as  allowed  to  testify  to  conversations  and  mat- 
ters between  him  and  George  Taft  pertaining  to  the  note  and 
mortgage ;  and  the  defendants  excepted, 

Clark^  J.  The  note  being  a  Massachusetts  contract  is  gov- 
erned by  the  law  of  Massachusetts.  The  mortgage,  although  ex- 
ecuted in  Massachusetts  by  citizens  of  that  state,  being  a  con- 
veyance of  land  in  New  Hampshire,  is  controlled  by  the  law  of 
New  Hampshire.  The  consideration  of  the  note  being  an  indebt- 
edness of  the  maker  to  the  payee  of  twenty-two  hundred  dollars, 
and  a  promise  of  the  payee  to  pay  to  the  maker  eighteen  hundrd 
dollars  when  the  mortgaged  premises  were  released  from  attach- 
ment was  sufficient,  and  the  mortgage  is  valid  by  the  law  of 
New  Hampshire.  The  amount  of  the  advance,  eighteen  hundred 
dollars,  the  contingency  upon  which  it  w'as  to  be  made,  and  the 
obligation  of  the  mortgagee  to  make  it,  were  definitely  agreed 
upon  at  the  execution  and  delivery  of  the  note  and  mortgage, 
and  the  agreement  was  afterwards  performed,  and  the  mortgage 
is  not  within  the  New  Hampshire  statute  prohibiting  mortgages 
to  secure  future  advances.  Steams  v.  Bennett,  48  N.  H.  400; 
Abbott  V.  Thouipson,  58  N.  H.  256. 

The  law  of  Massachusetts  allowed  the  parties  to  contract  for 
any  rate  of  interest  (Mass.  St.  of  1867,  c.  56,  s.  2),  and  the  pay- 
ments of  interest  at  the  rate  agreed  upon  were  legal  and  binding. 
Marvin  v.  Mandell,  125  Mass.  562.  It  is  immatrial  that  the 
agreement  was  not  in  writing.  The  statute  does  not  declare  such 
an  agreement  illegal :  it  merely  declares  "that  no  greater  rate  of 
interest  than  six  per  centum  per  annum  shall  be  recovered  in  any 
action,  except  when  the  agreement  to  pay  such  greater  rate  of 
interest  is  in  writing."    The  question  is  not  whether,  under  the  law  j 


476  PRIVATE    INTERNATIONAL    LAW. 

of  Massachusetts,  an  oral  executory  agreement  to  pay  interest  at  a 
j  higher  rate  than  six  per  cent,  can  be  enforced  by  action,  but 
'whether  such  agreement  is  vahd  when  full  executed.  Money 
paid  as  usurious  interest  is  allowed  to  be  recovered  back  on  the 
theory  that  the  law  regards  the  payment  as  made  under  duress 
(Albany  v.  Abbott,  6i  N.  H.  i68)  ;  but  the  general  rule  is,  that 
payments  voluntarily  made  with  a  full  knowledge  of  all  material 
facts  cannot  be  recovered  back,  even  though  made  upon  an 
illegal  consideration,  which  the  law  would  not  enforce.  Caldzvell 
V.  Weiitzi'orth,  14  N.  H.  431.  In  determining  the  amount  due 
upon  the  note,  the  endorsements  of  interest  are  to  be  applied  as 
the  parties  understood  and  intended  when  the  payments  were 
made. 

The  Jordan  lot  was  conveyed  to  George  Taft  May  3,  1855, 
and  he  held  the  title  when  the  plaintiff's  mortgage  was  given, 
James  Taft  paid  one-half  of  tlie  money  for  the  Jordan  property, 
but  it  does  not  appear  when  he  paid  it.  To  establish  a  resulting 
trust  in  his  favor,  it  must  appear  that  the  payment  was  made  at 
the  time  of  the  purchase,  since  the  trust  results  by  operation  of 
law  from  the  payment  of  the  money,  and  a  subsequent  payment 
would  be  ineffectual.  Prif chard  v.  Brown,  4  N.  H.  397;  Pem- 
bruok  V.  Allcnstozvn,  21  N.  H.  107;  Francestown  v.  Deering,  41 
N.  H.  438;  Bodzvell  v.  Nutter,  63  N.  H.  446.  No  resulting 
trust  is  shown,  and  if  the  facts  were  sufficient  to  establish  a  trust, 
it  could  not  be  set  up  to  defeat  the  mortgage  of  the  plaintiff  who 
had  no  notice  of  it. 

The  claim  of  James  Taft  to  title  to  an  undivided  half  of  the 
Jordan  lot  by  adverse  possession  is  not  sustained.  The  burden  is 
on  him  to  show  title,  and  the  referee  does  not  find  that  he  has 
acquired  any  title  by  adverse  possession. 

The  barn  built  by  Taft  &  Co.  on  the  Jordan  lot  has  always 
been  treated  as  personal  estate,  and  is  now  the  property  of  James 
Taft.  No  legal  ground  appears  for  excluding  the  testimony  of 
the  plaintiff  as  to  transactions  with  George  Taft. 

The  plaintiff  is  entitled  to  a  decree  of  foreclosure  of  the  mort- 
gaged premises,  excepting  therefrom  the  barn  on  the  Jordan  lot, 
for  the  amount  due  on  the  mortgage  note,  being  the  sum  of  thirty- 
three  hundred  dollars,  with  interest  at  six  per  cent  from  April  28, 
1883. 

Decree  accordingly. 


CONTRACTS.  477 

HART  V.  WILLS,  1879. 

[52  Iowa  56.] 

Day,  J.  The  court,  we  think,  erred  in  holding  that  the  con- 
tract upon  which  the  note  was  executed  was  to  be  performed  in 
Missouri,  and  that  the  law  of  Missouri  was  the  lex  loci  contractus. 
The  evidence  shows  the  following  state  of  facts :  The  note  in 
question  was  given  for  money  borrowed  in  equal  sums  by  Uriah 
Wills  and  S.  Sprague.  A.  T.  Grimes  is  a  surety  upon  the  note. 
The  defendants  Wills  and  Sprague  had  some  conference  in  Iowa 
with  the  plamtifif,  Buton  Hart,  respecting  Wm.  M.  Hart,  who 
lived  in  Missouri.  vSubsequently  the  defendants  Sprague  and 
Buton  Hart  visited  Wm.  M.  Hart  in  Missouri,  where  the  note 
in  question  was  signed  by  Sprague.  Wm.  M.  Hart  then  gave 
Buton  Hart  a  package  of  money  to  bring  to  Iowa,  and  directed 
him,  when  the  note  was  executed  by  the  other  parties,  to  pay 
the  money  to  the  defendants.  Wills  and  Grimes  signed  the 
note  in  Decatur  county,  Iowa,  and  then  the  note  was  delivered 
and  the  money  was  paid  over.  Under  these  circumstances  the 
note  must  be  regarded  as  an  Iowa  contract,  and  governed  by 
its  laws.  In  Second  Parson's  on  Notes  and  Bills,  page  327,  it 
is  said :  "The  lex  loci  contractus  depends  not  upon  the  place 
where  the  note  or  bill  is  made,  drawn,  or  dated,  but  upon  the 
place  where  it  is  delivered  from  drawer  to  drawee,  from  prom- 
issor  to  payee,  from  indorser  to  indorsee.  It  has  been  frequently 
stated  that  a  note  is  nothing  until  delivered ;  and  that  indorse- 
ment is  not  merely  writing,  but  transferring  from  the  hand  of 
the  one  party  to  that  of  the  other."  See,  also,  cases  cited  in 
note  3.  It  is  urged  by  appellee  that  if  no  place  be  designated 
ui  a  note  as  a  place  of  payment,  the  law  of  the  place  where  it 
is  made  determines  its  construction,  obligation  and  place  of 
payment,  citing  Second  Parson's  on  Notes  and  Bills,  page  333. 
This  is  true  if  the  making  of  a  note  be  regarded  as  including 
the  delivery,  but  not  otherwise.  The  appellee  further  insists 
that  the  dating  of  the  note  at  Princeton,  Missouri,  designates 
that  place  as  the  place  of  payment.  No  authority  is  cited  in 
support  of  this  position,  and  we  think  it  is  not  maintainable. 
In  Cook  V.  Moffat,  5  How.  295,  notes  drawn  and  dated  at 
Baltimore,  but  delivered  in  New  York  in  payment  of  goods  pur- 
chased there,  were  held  to  be  payable  in  and  governed  by  the 
laws  of  New  York.  In  that  case  Grikr,  J.,  said:  "Although  the 
notes  purport  to  have  boon  niado   in    r)altimore,  they   were  de- 


478  PRIVATE    INTERNATIONAL    LAW. 

livered  in  New  York  in  payment  of  goods  furnished  there,  and 
of  course  were  payable  there,  and  governed  by  the  laws  of  that 
place."  See,  also,  other  authorities  cited  in  Second  Parson's  on 
Notes  and  Bills,  page  327,  note  z.  The  court  erred  in  holding 
that  the  defence  of  usury  could  not  be  considered.  The  cause 
must  be  remanded  for  new  trial. 

Reversed. 

MAYNARD  v.  HALL,  1896. 
[92  Wis.  565.] 

Appeal  from  a  judgment  of  the  circuit  court  of  La  Fay- 
ette county:  Geo.  Clementson,  Circuit  Judge.     Reversed. 

This  action  was  brought  for  the  foreclosure  of  a  mortgage 
executed  by  the  defendants  Thomas  Hall  and  Mary  Jane  Hall, 
his  wife,  to  the  plaintiff,  a  citizen  of  Illinois,  to  secure  the  pay- 
ment of  a  note  dated  June  9,  1887,  for  $4,000,  executed  by 
them  in  Illinois,  and  payable  to  the  plaintiff  or  order,  on  or 
before  June  9,  1888,  at  the  Bank  of  Apple  River,  at  Apple  River, 
Illinois,  with  interest  after  date  at  the  rate  of  eight  per  cent, 
per  annum,  payable  annually,  until  paid.  The  answer  contests  the 
right  of  the  plaintiff  to  recover  any  more  than  the  principal  sum 
of  $4,000,  on  the  groimd  that  the  note  and  mortgage  given  to 
secure  the  debt  of  that  amount  were  usurious  under  the  law  of 
Illinois  in  force  at  the  time,  which  was  pleaded  and  proved  at 
the  trial. 

It  was  found  by  the  court  that  at  the  date  of  the  note  the 
defendant  Thomas  Hall  was  indebted  to  the  plaintiff  in  a  sum 
exceeding  $4,000,  and  to  secure  that  portion  of  said  indebtedness 
the  promissory  note  and  mortgage  in  question  were  executed, 
and  that  it  was  agreed  at  the  time  that  the  defendant  Hall  should 
pay,  and  the  plaintiff  should  receive,  for  interest  on  the  said 
$4,000,  twelve  per  cent,  per  annum,  eight  per  cent,  whereof  was 
agreed  to  be  paid  by  the  terms  of  the  said  note,  and  the  additional 
four  per  cent.,  or  $160,  up  to  the  maturity  of  the  note,  one  year 
after  date,  was  to  be  and  was  paid  at  the  time  in  advance;  that 
soon  after  the  maturity  of  the  note,  it  was  further  agreed  that 
the  defendant  //a//  should  pay,  and  the  plaintiff  should  receive, 
twelve  per  cent,  interest  upon  the  said  note  for  the  year  next 
after  its  maturity, — that  is  to  say,  four  per  cent,  per  annum,  or 
$160,  in  addition  to  the  eight  per  cent,  secured  thereby, — which 
the  defendant  Hall  paid,  and  the  plaintiff"  then  received,  in 
advance ;  both  payments  having  been  made  by  checks  drawn  on 


CONTRACTS.  479 

the  plaintiff,  who  was  a  banker,  by  the  defendant  Hall,  against 
his  account  with  him,  and  were  thereupon  paid  and  charged 
accordingly.  It  was  further  found  that  the  note  and  mortgage 
were  Illinois  contracts,  to  be  governed  by  the  interest  and  usury 
laws  of  that  state  existing  at  the  time ;  and  the  cases  of  First  Nat. 
Bank  V.  Davis,  io8  111.  633,  and  Harris  v.  Bressler,  119  111. 
467,  and  other  cases  in  the  supreme  and  appellate  courts  of  that 
state,  were  read  in  evidence.  The  court  found  the  amount  due  on 
the  note  and  mortgage  was  the  principal  sum  of  $4,000,  with 
interest  from  June  9,  1888,  the  time  when  the  note,  by  its  terms, 
became  due,  at  the  rate  of  six  per  cent,  per  annum,  and  gave 
judgment  of  foreclosure  accordingly,  from  which  the  defendants 
Thomas  Hall  and  Mary  Jane  Hall,  his  wife,  appealed. 

PiNNEY,  J.  The  only  question  involved  is  whether  the 
plaintiff  was  entitled  to  recover  any  money  for  interest  on  the 
note  and  mortgage.  They  are  Illinois  contracts,  and  governed 
wholly  by  the  Illinois  laws.  The  judgment  to  be  given,  in  respect 
to  the  questions  of  usury  and  interest  thereon,,  is  to  be  such  as  the 
courts  of  that  state  would  give,  according  to  the  laws  of  Illinois. 
By  the  Revised  Statutes  of  Illinois  of  1881  (ch.  74,  .sees,  i,  4-6), 
it  is  provided,  in  substance,  that  the  lawful  rate  of  interest  shall 
be  six  per  cent. ;  that  it  should  be  lawful,  by  written  contract, 
for  parties  to  agree  that  eight  per  cent,  per  annum,  or  any  less 
sum,  should  be  paid ;  that  no  person  should,  directly  or  indirectly, 
accept  or  receive,  in  money,  goods,  etc.,  or  in  any  other  way,  any 
greater  sum  or  greater  value  for  the  loan,  forbearance,  or  dis- 
count of  any  money,  goods,  or  thing  in  action,  than  above 
specified,  and  that  "if  any  person  or  corporation  in  this  state 
shall  contract  to  receive  a  greater  rate  of  interest  or  discount 
than  eight  per  cent,  upon  any  contract,  verbal  or  written,  such 
person  or  corporation  shall  forfeit  the  whole  of  said  interest  so 
contracted  to  be  received,  and  shall  be  entitled  only  to  recover 
the  principal  sum  due  to  such  person  or  corporation ;  and  that 
all  contracts  executed  after  this  act  shall  take  effect,  which  shall 
provide  for  interest  or  compensation  at  a  greater  rate  than  herein 
specified  on  account  of  nonpayment  at  maturity,  shall  be  deemed 
usurious,  and  only  the  principal  sum  due  thereon  shall  be  re- 
coverable." The  above  provisions  are  also  made  applicable  to 
any  written  contract,  wherever  payable,  if  made  in  Illinois,  or 
between  citizens  or  corporations  of  that  state  and  citizens  or 
corporations  of  any  other  state,  territory,  or  country,  or  shall  be 
secured  by  mortgage  or  trust  deed  on  lands  in  such  state. 


480  PRIVATE    INTERNATIONAL    LAW. 

It  is  difficult  to  see  how  there  can  be  any  room  for  doubt 
of  the  legislative  intent  where  it  is  enacted,  as  in  these  provisions, 
that,  if  any  person  or  corporation  shall  contract  to  receive  a 
greater  rate  of  interest  or  discount  than  eight  per  cent.,  such 
person  or  corporation  "shall  forfeit  the  whole  of  said  interest 
so  contracted  to  be  received,  and  shall  be  entitled  only  to  recover 
the  principal  sum  due  to  such  person  or  corporation."  The  latter 
clause  is  too  clear  and  decisive  to  admit  of  doubt  or  require 
construction.  The  statute  is  aimed  at  the  evil  supposed  to  grow 
out  of  usurious  contracts,  and  it  imposes  the  loss  of  all  interest, 
not  only  such  as  might  accrue  before  the  maturity  of  the  obli- 
gation, but  that,  as  well,  which  might  accrue  thereafter.  The 
case  of  First  Nat.  Bank  v.  Davis,  io8  111.  633,  relied  on  by  the 
plaintiff  which  arose  under  a  statute  the  same  in  substance, 
holds  that,  where  the  contract  is  usurious,  after  the  maturity 
of  the  obligation  the  principal  sum  will  draw  the  legal  rate  of 
interest  at  six  per  cent.,  and  that  interest  at  that  rate  may  be 
recovered  thereon.  This  appears  to  be  directly  contrary  to  the 
words  of  the  statute.  The  decision  was  by  a  divided  court ;  two  of 
its  judges  dissenting  from  this  view,  and  two  others  of  the  seven 
holding  tliat  the  transaction  in  question  was  not  usurious.  The 
proposition,  therefore,  for  which  the  case  is  cited,  could  not  have 
had  the  concurrence,  it  would  seem,  of  more  than  three  judges, — 
a  minority  of  the  court.  In  the  subsequent  case  of  Harris  v. 
Brcssler,  119  111,  467,  471,  where  the  same  question  again  arose, 
the  case  of  First  Nat.  Bank  v.  Davis,  supra,  was  considered, 
and  it  was  expressly  overruled,  as  to  this  question,  by  the  unani- 
mous decision  of  the  court,  made  before  the  securities  in  ques- 
tion were  executed ;  and  it  was  held  in  Harris  v.  Bressler,  supra, 
that  in  such  case  no  interest,  but  only  the  principal  sum,  could 
be  recovered.  Had  the  plaintiff  sued  the  defendant  Hall  on  the 
note  in  Illinois,  it  is  manifest  that,  on  the  defence  made  that  it 
was  usurious,  he  could  not  have  recovered  any  interest,  and  would 
have  been  "entitled  only  to  recover  the  principal  sum  due."  This 
view  is  decisive  of  the  case. 

As  the  defendants  have  not  applied  for  equitable  relief,  the 
equity  rule  applicable  to  cases  requiring  a  tender  of  the  prin- 
cipal sum  loaned,  as  a  condition  of  relief,  does  not  apply.  The 
defendants  stand  on  the  defensive,  and  claim  only  what  the  statute 
secures  to  them. 

The  provisions  of  sec.  1692,  R.  S.,  that  "when  any  person 
shall  set  up  the  plea  of  usury  in  any  action  instituted  against 


CONTRACTS.  481 

him,  such  person,  to  be  entitled  ...  to  the  benefit  of  such 
plea,  shall  prove  a  tender  of  the  principal  sum  of  money  or  thing 
loaned  to  the  party  entitled  to  receive  the  same,"  is  a  provision 
of  the  usury  laws  of  this  state,  and  relates  only  to  actions 
upon  contracts  made  usurious  by  the  provision  of  the  statute  of 
this  state,  and  has  no  application  to  a  case  like  the  present,  aris- 
ing under  and  governed  by  the  statute  against  usury  of  another 
state. 

It  follows  that  the  judgment  of  the  circuit  court  is  erroneous 
as  to  the  sum  adjudged  due,  and  must  be  reversed.  The  plaintiff 
cannot  have  judgment  for  more  than  the  principal  sum  of  $4,000 
and  costs. 

By  the  Court. — The  judgment  of  the  circuit  court  is  re- 
versed, and  the  cause  is  remanded  with  directions  to  enter  judg- 
ment in  conformity  to  the  opinion  of  this  court. 


/ 


LEROUX  V.  BROWN,  1852. 
[74  Eng.  Com.  Law  800. 


Assumpsit.  The  declaration  stated,  that,  on  the  ist  of  De- 
cember, 1849,  at  Calais,  in  France,  to  w-it,  at  Westminster,  in  the 
county  of  ^Middlesex,  in  consideration  that  the  plaintiflf,  at  the  re- 
quest of  the  defendant,  then  agreed  with  the  defendant  to  enter 
into  the  service  of  the  defendant  as  clerk  and  agent,  and  to  serve 
the  defendant  in  that  capacity  for  one  year  certain,  at  certain 
wages,  to  wit,  100/.  a  year,  to  be  paid  by  the  defendant  to  the 
plaintiff  by  equal  quarterly  payments  during  his  continuance  in 
such  service,  the  defendant  then  promised  the  plaintiff  to  receive 
him  into  his  said  service,  and  to  retain  and  employ  him  in  his  said 
service,  at  the  wages  aforesaid :  Averment  that  the  plaintiff,  con- 
fiding in  the  promise  of  the  defendant,  was  then,  and  from  thence 
continually  had  been,  ready  and  willing  to  enter  into  the  service 
of  the  defendant  as  aforesaid,  and  to  serve  the  defendant,  for  the 
wages  aforesaid :  fJreach,  that,  though  the  plaintiff  afterwards, 
to  wit,  on  the  day  and  year  aforesaid,  requested  the  defendant  to 
receive  the  plaintiff'  into  the  service  of  the  defendant  as  aforesaid, 
and  to  retain  and  employ  him  in  such  service,  at  the  wages  afore- 
said; yet  the  defendant,  not  regarding  his  promise,  did  not.  nor 
would,  at  the  time  he  was  so  requested  as  aforesaid,  or  at  any 
other  time,  receive  the  plaintiff  into  his  service  as  aforesaid,  or 
retain  or  employ  him.  at  such  wages  as  aforesaid,  or  in  any  other 
w^ay,  but  wholly  neglected  and  refused  so  to  do ;  whereby  the 
31 


482  PRIVATE    INTERNATIONAL    LAW. 

plaintiff  not  only  lost  and  was  deprived  of  all  the  profits  and 
emoluments  which  might  and  would  otherwise  have  arisen  and 
accrued  to  him  from  entering  into  the  service  of  the  defendant, 
but  also  lost  and  was  deprived  of  the  means  and  opportunity  of 
being  retained  and  employed  by  and  in  the  service  of  divers 
other  persons,  and  remained  wholly  out  of  service  and  unem- 
ployed for  a  long  time,  to  wit,  for  the  year  then  next  following, 
and  was  and  is  otherwise  greatly  injured,  &c. 

Pleas, — first,  non  assumpsit, — secondly,  that  the  plaintiff  was 
not  ready  and  willing  to  enter  into  the  service  of  the  defendant, 
and  to  serve  him  the  defendant,  for  the  wages  in  the  declaration 
mentioned,  in  manner  and  form  as  in  the  declaration  was  alleged, 
— thirdly,  that  the  plaintiff'  did  not  request  the  defendant  to  re- 
ceive him,  the  plaintiff",  into  the  service  of  him,  the  defendant,  or 
to  retain  or  employ  him,  the  plaintiff,  in  such  service,  at  the  wages 
in  the  declaration  mentioned,  in  manner  and  fonn  as  the  plaintiff 
had  above  in  the  declaration  alleged. 

Upon  each  of  these  pleas  isstie  was  joined. 

The  cause  was  tried  before  Talfourd,  J.,  at  the  second  sitting 
in  Middlesex,  in  Trinity  Term  last.  It  appeared  that  an  oral 
agreement  had  been  entered  into  at  Calais,  between  the  plaintiff 
and  the  defendant,  under  which  the  latter,  who  resided  in  Eng- 
land, contracted  to  employ  the  former,  who  was  a  British  subject 
resident  at  Calais,  at  a  salary  of  lOo/.  per  annum,  to  collect  poul- 
try and  eggs  in  that  neighborhood,  for  transmission  to  the  defend- 
ant here, — the  employment  to  commence  at  a  future  day,  and  to 
continue  for  one  year  certain. 

Evidence  was  given  on  the  part  of  the  plaintiff'  to  show,  that, 
by  the  law  of  France,  such  an  agreement  is  capable  of  being  en- 
forced, although  not  in  writing. 

For  the  defendant,  it  was  insisted,  that,  notwithstanding  the 
contract  was  made  in  France,  when  it  was  sought  to  enforce  it  in 
this  country,  it  must  be  dealt  with  according  to  our  law ;  and, 
being  a  contract  not  to  be  performed  within  a  year,  the  statute  of 
frauds,  29  Car.  2,  c.  3,  s.  4,  required  it  to  be  in  writing. 

Under  the  direction  of  the  learned  judge,  a  verdict  was  en- 
tered for  the  plaintiff  on  the  first  issue, — leave  being  reserved  to 
the  defendant  to  move  to  enter  a  nonsuit  or  a  verdict  for  him  on 
that  issue,  if  the  court  should  be  of  opinion  that  the  contract  could 
not  be  enforced  here. 

Jervis,  C.  J. — I  am  of  opinion  that  the  rule  to  enter  a  nonsuit 
must  be  made  absolute.     There  is  no  dispute  as  to  the  principles 


CONTRACTS.  483 

which  ought  to  govern  our  decision.  My  Brother  Allen  admits, 
that,  if  the  4th  section  of  the  statute  of  frauds  applies,  not  to  the 
validity  of  the  contract,  but  only  to  the  procedure,  the  plaintiff 
cannot  maintain  this  action,  because  there  is  no  agreement,  nor 
any  memorandum  or  note  thereof,  in  writing.  On  the  other 
hand,  it  is  not  denied  by  Mr.  Honyman, — who  has  argued  this 
case  in  a  manner  for  which  the  court  is  much  indebted  to  him, — 
that,  if  the  4th  section  applies  to  the  contract  itself,  or,  as  Boulle- 
nois  expresses  it,  to  the  solemnities  of  the  contract,  inasmuch  as 
our  law  cannot  regulate  foreign  contracts,  a  contract  like  this 
may  be  enforced  here.  I  am  of  opinion  that  the  4th  section  ap- 
plies not  to  solemnities  of  the  contract,  but  to  the  procedure ; 
and  therefore  that  the  contract  in  question  cannot  be  sued  upon 
here.  The  contract  may  be  capable  of  being  enforced  in  the 
country  where  it  was  made :  but  not  in  England.  Looking  at  the 
words  of  the  4th  section  of  the  statute  of  frauds,  and  contrasting 
them  with  those  of  the  ist,  3d,  and  17th  sections,  this  conclusion 
seems  to  me  to  be  enevitable.  The  words  of  s.  4  are,  "no  action 
shall  be  brought  upon  any  agreement  which  is  not  to  be  per- 
formed within  the  space  of  one  year  from  the  making  thereof, 
unless  the  agreement  upon  which  such  action  shall  be  brought, 
or  some  memorandum  or  note  thereof,  shall  be  in. writing,  and 
signed  by  the  party  to  be  charged  therewith,  or  some  other  person 
thereto  by  him  lawfully  authorized."  The  statute,  in  this  part  of 
it,  does  not  say,  that,  unless  those  requisites  are  complied  with, 
the  contract  shall  be  void,  but  merely  that  no  action  shall  be 
brought  upon  it:  and,  as  was  put  with  great  froce  by  Mr.  Hony- 
man, the  alternative,  "unless  the  agreement,  or  some  memoran- 
dum or  note  thereof,  shall  be  in  writing," — words  which  are 
satisfied  if  there  be  any  written  evidence  of  a  previous  agreement. 
— shows  that  the  statute  contemplated  that  the  agreement  may  be 
good,  though  not  capable  of  being  enforced  if  not  evidenced  bv 
writing.  This  therefore  may  be  a  very  good  agreement  though, 
for  want  of  a  compliance  with  the  requisites  of  the  statute,  not 
enforceable  in  an  English  court  of  justice.  This  view  seems  to 
be  supported  by  the  authorities ;  because,  unless  we  are  to  infer 
that  the  courts  thought  the  agreement  itself  good,  though  not 
made  in  strict  compliance  with  the  statute,  they  could  not  con- 
sistently have  held,  as  was  held  in  the  cases  referred  to  by  Sir 
Edward  Sugden,  that  a  writing  subsequent  to  the  contract,  and 
addressed  to  a  third  person,  was  sufticient  evidence  of  an  agree- 
ment, within  the  statute.     It  seems,  therefore,  that  both  authoritv 


484  PRIVATE     INTERNATIONAL    LAW. 

and  practice  are  consistent  with  the  words  of  the  4th  section. 
The  -cases  of  Carrington  v.  Roots,  and  Reade  v.  Lamb,  however, 
have  been  pressed  upon  us  as  being  inconsistent  with  this  view. 
It  is  sufficient  to  say  that  the  attention  of  the  learne'd  judges  by 
whom  those  cases  were  decided,  was  not  invited  to  the  particular 
point  now  in  question.  What  they  were  considering  was,  whether, 
for  the  purposes  of  those  actions,  there  was  any  substantial  dif- 
ference between  the  4th  and  17th  sections.  It  must  be  borne  in 
mind  that  the  meaning  of  those  sections  has  been  the  subject 
of  discussion  on  other  occasions.  In  Crosby  v.  Wadsworth,  6 
East,  602,  Lord  Ellenborough,  speaking  of  the  4th  section,  says, — 
"The  statute  does  not  expressly  and  immediately  vacate  such 
contracts,  if  made  by  parol :  it  only  precludes  the  bringing  of 
actions  to  enforce  them."  Again,  in  Laythoarp  v.  Bryant,  2  N.  C. 
735,  3  Scott,  238,  Tindal,  C.  J.,  and  Bosanquet,  J.,  say  distinctly 
that  the  contract  is  good,  and  that  the  statute  merely  takes  away 
the  remedy,  where  there  is  no  memorandum  or  note  in  writing. 
I  therefore  think  we  are  correct  in  holding  that  the  contract  in 
this  case  is  incapable  of  being  enforced  by  an  action  in  this 
country,  because  the  4th  section  of  the  29  Car.  2,  c.  3,  relates 
only  to  the  procedure,  and  not  to  the  right  and  validity  of  the 
contract  itself.  As  to  what  is  said  by  Boullenois  in  the  passage 
last  cited  by  Brother  Allen,  it  is  to  be  observed  that  the  learned 
author  is  there  speaking  of  what  pertains  ad  vinculum  obligationis 
et  solemnitatem,  and  not  with  reference  to  the  mode  of  procedure. 
Upon  these  grounds,  I  am  of  opinion  that  this  action  cannot  be 
maintained,  and  that  the  rule  to  enter  a  nonsuit  must  be  made 
absolute. 

Maule,  J. — I  am  of  the  same  opinion.  The  4th  section  of 
the  statute  of  frauds  enacts  that  "no  action  shall  be  brought  upon 
,  any  agreement  which  is  not  to  be  performed  within  the  space  of 
one  year  from  the  making  thereof,  unless  the  agreement  upon 
which  such  action  shall  be  brought,  or  some  memorandum  or  note 
thereof,  shall  be  in  writing,  and  signed  by  the  party  to  be  charged 
therewith,  or  some  other  person  thereto  by  him  lawfully  author- 
ized." Now,  this  is  an  action  brought  upon  a  contract  which  was 
not  to  be  performed  within  the  space  of  one  year  from  the  making 
thereof,  and  thei:e  is  no  memorandum  or  note  thereof  in  writing 
signed  by  the  defendant  or  any  lawfully  authorized  agent.  The 
case,  therefore,  plainly  falls  within  the  distinct  words  of  the  stat- 
ute. It  is  said  that  the  4th  section  is  not  applicable  to  this  case, 
because  the  contract  was  made  in  France.    This  particular  section 


CONTRACTS.  485 

does  not  in  terms  say  that  no  such  contract  as  before  stated  shall 
be  of  any  force;  it  says,  no  action  shall  be  brought  upon  it.  In 
their  literal  sense,  these  words  mean  that  no  action  shall  be 
brought  upon  such  an  agreement  in  any  court  in  which  the  British 
legislature  has  power  to  direct  what  shall  and  what  shall  not  be 
done ;  in  terms,  therefore,  it  applies  to  something  which  is  to  take 
place  where  the  law  of  England  prevails.  But  we  have  been 
pressed  with  cases  which  it  is  said  have  decided  that  the  words 
"no  action  shall  be  brought"  in  the  4th  section,  are  equivalent  to 
the  words  "no  contract  shall  be  allowed  to  be  good"  which  are 
found  in  another  part  of  the  statute.  Suppose  it  had  been  so  held, 
as  a  general  and  universal  proposition,  still  I  apprehend  it  would 
not  be  a  legitimate  mode  of  construing  the  4th  section,  to  substi- 
tute the  equivalent  words  for  those  actually  used.  What  we  have 
to  construe,  is,  not  the  equivalent  words,  but  the  words  we  find 
there.  If  the  substituted  words  import  the  same  thing,  the  substi- 
tution is  unnecessary  and  idle :  and,  if  those  words  are  susceptible 
of  a  different  construction  from  those  actually  used,  that  is  a  rea- 
son for  dealing  with  the  latter  only.  It  may  be,  that,  for  some  pur- 
poses, the  words  used  in  the  4th  and  17th  sections  may  be  equiva- 
lent ;  but  they  clearly  are  not  so  in  the  case  now  before  us ;  for, 
there  is  nothing  to  prevent  this  contract  from  being  enforced  in  a 
French  court  of  law.  Dealing  with  the  words  of  the  4th  section 
as  we  are  bound  to  deal  with  all  words  that  are  plain  and  unam- 
biguous, all  we  say,  is,  that  they  prohibit  the  courts  of  this  country 
from  enforcing  a  contract  made  under  circumstances  like  the 
present, — just  as  we  hold  a  contract  incapable  of  being  en- 
forced, where  it  appears  upon  the  record  to  have  been  made  more 
than  six  years.  It  is  parcel  of  the  procedure,  and  not  of  the  for- 
mality of  the  contract.  None  of  the  authorities  which  have  been 
referred  to  seem  to  me  to  be  at  all  at  variance  with  the  conclusion 
at  which  we  have  arrived. 

T.\LFORD,  J. — I  am  of  the  same  opinion.  The  argument  of 
Mr.  Honyman  seems  10  me  to  be  quite  unanswerable.  Tliat  drawn 
from  Laythoarp  v.  Bryant  and  that  class  of  cases  in  which  it  has 
been  held  that  the  4th  section  of  the  statute  of  frauds  is  satisfied 
by  a  subsequent  letter  addressed  to  a  third  party,  containing  evi- 
dence of  the  terms  of  the  contract,  shows  clearly  that  that  section 
has  reference  to  procedure  only,  and  not  to  what  are  called  bv  the 
jurists  the  rights  and  solemnities  of  the  contract.     Rule  absolute. 


486  PRIVATE    INTERNATIONAL    LAW. 

•        EMERY  V.  BURBANK,   1895. 

[163  Mass.  326.] 

Holmes,  J. — This  is  an  action  on  an  oral  agreement,  alleged 
to  have  been  made  in  Maine  in  1890,  by  the  defendant's  testa- 
trix, Mrs.  Rumery,  to  the  effect  that,  if  the  plaintiff  would  leave 
Maine  and  take  care  of  Mrs.  Rumery,  the  latter  would  leave  the 
plaintiff  all  her  property  at  her  death,  and  also  would  put  four 
thousand  dollars  into  a  house  which  the  plaintiff  should  have. 
At  the  trial  evidence  was  introduced  tending  to  prove  the  agree- 
ment as  alleged.  The  presiding  justice  ruled  that  the  action 
could  not  be  maintained,  and  the  case  is  here  on  exceptions.  As 
we  are  of  opinion  that  the  ruling  must  be  sustained  under  St. 
1888,  c.  372,  requiring  agreements  to  make  wills  to  be  in  writing, 
a  fuller  statement  of  the  facts  is  not  needful. 

There  is  no  doubt  of  the  general  principals  to  be  applied.  A 
contract  valid  where  it  is  made  is  valid  everywhere,  but  it  is  not 
necessarily  enforceable  everywhere.  It  may  be  contrary  to  the 
policy  of  the  law  of  the  forum.  Van  Reimsdyk  v.  Kane,  i  Gall. 
371,  375.  Greenwood  v.  Curtis,  6  Mass.  358.  Fant  v.  Miller, 
ly  Grat.  47,  62.  Or  again,  if  the  law  of  the  forum  requires  a 
certain  mode  of  proof,  the  contract,  although  valid,  cannot  be 
enforced  in  that  jurisdiction  without  the  proof  required  there. 
This  is  as  true  between  the  States  of  this  Union  as  it  is  between 
Massachusetts  and  England.  Hoadley  v.  Northern  Transporta- 
tion Co.  115  Mass.  304,  306.  Pritchard  v.  Norton,  106  U.  S.  124, 
134.  Downer  v.  Chcsehrongh,  36  Conn.  39.  Kleeman  v.  Collins, 
9  Bush.  (Ky.)  460.  Fant  v.  Miller,  17  Grat.  47.  Hunt  v.  Jones. 
12  R.  I.  265,  266.  Yates  v.  Thomson,  3  CI.  &  Fin.  544,  586,  587. 
Bain  v.  Whitehaven  &  Furness  Junction  Railway,  3  H.  L.  Cas.  i, 
19.  Leronx  v.  Brown,  12  C.  B.  801.  When  the  law  involved  is 
a  statute,  it  is  a  question  of  construction  whether  the  law  is  ad- 
dressed to  the  necessary  constituent  elements,  or  legality,  of  the 
contract  on  the  one  hand,  or  to  the  evidence  by  which  it  shall 
be  proved  on  the  other.  In  the  former  case  the  law  affects  con- 
tracts made  within  the  jurisdiction,  wherever  sued,  and  may 
affect  only  them.  Dretif  v.  Smith,  59  Maine,  393.  In  the  latter, 
it  applies  to  all  suits  within  the  jurisdiction,  wherever  the  con- 
tracts sued  upon  were  made,  and  again  may  have  no  other  effect. 
It  is  possible,  however,  that  a  statute  should  affect  both  validity 
and  remedy  by  express  words,  and  this  being  so,  it  is  possible 
that  words  which  in  terms  speak  only  of  one  should  carry  with 


CONTRACTS.  487 

them  an  implication  also  as  to  the  other.  For  instance,  in  a 
well  known  English  case  Maule,  J.,  said,  "The  fourth  section  of 
the  statute  of  frauds  entirely  applies  to  procedure."  And  on 
this  ground  it  was  held  that  an  action  could  not  be  maintained 
upon  an  oral  contract  made  in  France.  But  he  went  on  "It 
may  l>e  that  the  words  used,  operating  on  contracts  made  in 
England,  renders  them  void."  Lcronx  v.  Brozcn,  12  C.  B.  801, 
805,  827.  We  cite  the  language,  not  for  its  particular  applica- 
tion, but  as  a  recognition  of  the  possibility  which  we  assert. 

The  words  of  the  statute  before  us  seem  in  the  first  place, 
and  most  plainly,  to  deal  with  the  validity  and  form  of  the  con- 
tract. "No  agreement  .  .  .  shall  be  binding,  unless  such  agree- 
ment is  in  writing.'  If  taken  literally,  they  are  not  satisfied  by  a 
written  memorandum  of  the  contract ;  the  contract  itself  must  be 
made  in  writing.  They  are  limited,  too,  to  agreements  made  after 
the  passage  of  the  act,  a  limitation  which  perhaps  would  be  more 
likely  to  be  inserted  in  a  law  concerning  the  form  of  a  contract 
than  in  one  which  only  changed  a  rule  of  evidence.  But  we  are 
of  opinion  that  the  statute  ought  not  to  be  limited  to  its  operation 
on  the  form  of  contracts  made  in  this  State.  The  generality  of 
the  words  alone,  "no  agreement,''  is  not  conclusive.  But  the 
statute  evidently  embodies  a  fundamental  policy.  The  ground,  of 
course,  is  the  prevention  of  fraud  and  perjury,  which  are  deemed 
likely  to  be  practised  without  this  safeguard.  The  nature  of  the 
contract  is  such  that  it  naturally  would  be  performed  or  sued 
upon  at  the  domicil  of  the  promisor.  If  the  policy  of  Massachu- 
setts makes  void  an  oral  contract  of  this  sort  made  within  the 
State,  the  same  policy  forbids  that  Massachusetts  testators  should 
be  sued  here  upon  such  contracts  without  written  evidence, 
wherever  they  are  made. 

If  we  are  right  in  our  understanding  of  the  policy  established 
by  the  Legislature,  it  is  our  duty  to  carry  it  out  so  far  as  we  can 
do  so  without  coming  into  conflict  with  paramount  principles. 
"If  oral  evidence  were  offered  which  the  lex  fori  excluded,  such 
exclusion,  being  founded  on  the  desire  of  preventing  perjury, 
might  claim  to  override  any  contrary  rule  of  the  lex  loci  con- 
tractus, not  only  on  the  ground  of  its  being  a  question  of  pro- 
cedure, but  also  because  of  that  reservation  in  favor  of  any 
stringent  domestic  policy  which  controls  all  maxims  of  private 
international  law."  Westlake.  Priv.  Int.  Law,  (}^<\  cd.)  § -?o8. 
Wharton,  Confi.  Laws,  (2d  ed.)  §  766. 

In  our  view,  the  statute,  whatever  it  expresses,  implies  a  rule 


488  PRIVATE    INTERNATIONAL    LAW. 

of  procedure  broad  enough  to  cover  this  case.  It  is  not  neces- 
sary to  decide  exactly  how  broad  the  rule  may  be, — whether,  for 
instance,  if,  by  some  unusual  chance,  a  suit  should  happen  to  be 
brought  here  against  an  ancillary  administrator  upon  a  contract 
made  in  another  State  by  one  of  its  inhabitants,  the  contract 
would  have  to  be  in  writing.  The  rule  extends  at  least  to  con- 
tracts by  Massachusetts  testators.  It  might  be  possible  to  treat 
the  words,  "signed  by  the  party  whose  executor  or  adminsitrator 
is  sought  to  be  charged,"  as  meaning  "signed  by  the  party  whose 
executor  or  administrator  is  sought  to  be  charged  in  Massachu- 
setts," and  to  construe  the  whole  statute  as  directed  only  to  pro- 
cedure. Compare  Fant  v.  Miller,  ly  Grat.  47,  72,  et  seq.  Denny 
V.  Williaiiis,  5  Allen,  i,  3,  9.  Upon  this  question  also  we  express 
no  opinion.  All  that  we  decide  is  that  the  statute  does  apply  to  a 
case  like  the  present. 

The  law  of  the  testator's  domicil  is  the  law  of  the  will.  A 
contract  to  make  a  will  means  an  effectual  will,  and  therefore  a 
will  good  by  the  law  of  the  domicil.  In  a  sense,  the  place  of 
performance,  as  well  as  the  forum  for  a  suit  in  case  of  breach,  is 
the  domicil.  We  do  not  draw  the  conclusion  that  therefore  the 
validity  of  all  such  contracts,  wherever  sued  on,  must  depend  on 
the  law  of  the  domicil.  That  would  leave  many  such  contracts 
in  a  state  of  indeterminate  validity  until  the  testator's  death,  as 
he  may  change  his  domicil  so  long  as  he  can  travel.  But  the 
consideration  shows  that  the  final  domicil  is  more  concerned  in 
the  policy  to  be  insisted  on  than  any  other  jurisdiction,  and 
justifies  it  in  framing  its  rules  accordingly.  There  would  be  no 
question  to  be  argued  if  the  law  were  in  terms  a  rule  of  evidence. 
It  is  equally  open  for  a  State  to  declare,  upon  the  same  considera- 
tions which  dictate  a  rule  of  evidence,  that  a  contract  must  have 
certain  form  if  it  is  to  be  enforced  against  its  inhabitants  in  its 
courts.  Legislation  of  this  kind  for  contracts  which  thus  neces- 
sarily reach  mtc  the  jurisdiction  in  their  operation  hardly  goes 
as  far  as  statutes  dealing  with  substantive  liability  which  have 
been  upheld.     Commomvealth  v.  Macloon,  loi  Mass.  i. 

If  the  statute  applies,  the  fact  that  the  plaintiff  has  furnished 
the  stipulated  consideration  will  not  prevent  its  application. 

Exceptions  overruled. 


/ 


.      CONTRACTS.  489 

HEATON  V.  ELDRIDGE,   1897. 
[56  Ohio  St.  87.1 


Error  to  the  Circuit  Court  of  Franklin  county. 

Action  was  brought  by  EHza  Heaton  against  Eldridge  & 
Higgins,  in  the  court  of  common  pleas,  on  several  promissory 
notes  executed  by  the  defendants,  amounting  in  the  aggregate 
to  something  over  two  thousand  dollars. 

The  answer  set  up  a  counter-claim  for  damages  resulting 
from  the  breach  of  an  oral  agreement  which,  it  was  alleged,  had 
had  been  entered  into  by  the  parties,  whereby  the  plaintiff  agreed 
to  employ  the  defendants  as  her  agents  for  the  sale  of  cigars  of 
the  plaintiff's  manufacture,  at  a  stipulated  compensation,  and  for 
a  specified  time  extending  beyond  the  period  of  one  year.  The 
agreement,  it  is  averred,  was  made  and  to  be  performed  in  the 
state  of  Pennsylvania,  where  the  law  did  not  require  contracts 
of  that  kind  to  be  in  writing,  nor  a  written  memorandum  thereof 
to  l>e  signed  by  either  party,  nor  forbid  the  bringing  of  an  action 
thereon.  The  allegations  of  the  answer  were  specifically  denied 
by  reply,  and  at  the  trial  the  plaintiff  interposed  the  statute  of 
frauds  of  this  state  to  the  evidence  offered  in  support  of  them. 
The  evidence  offered  to  establish  the  agreement,  which  consisted 
of  oral  testimony  only,  was  excluded  from  the  consideration  of 
the  jury;  and  there  being  no  defense  to  the  notes,  judgment  was 
rendered  for  the  plaintiff  for  the  amount  due  on  them.  The 
judgment  was  reversed  by  the  circuit  court,  for  error  in  the 
exclusion  of  the  testimony;  the  court  holding  that,  as  the  contract 
was  valid  where  it  was  made,  our  statute  was  not  an  obstacle  to 
its  enforcement  here ;  and  whether  that  holding  is  correct  is  the 
only  question  brought  before  this  court. 

WiLLr.\MS,  J. — It  is  provided  by  section  4199,  of  the 
Revised  Statutes,  that :  "No  action  shall  be  brought  *  *  * 
upon  any  agreement  that  is  not  to  be  performed  within  the  space 
of  one  year  from  the  making  thereof ;  unless  the  agreement  upon 
which  such  action  is  brought,  or  some  memorandum  or  note 
thereof,  is  in  writing,  and  signed  by  the  party  to  be  charged  there- 
with, or  some  person  thereunto  bv  him  or  her  lawfullv  author- 
ized." 

There  is  no  doubt  that  the  law  of  the  state  or  country  where  h 
contract  is  executed  and  is  to  be  performed,  enters  into  and  becomes 
a  part  of  contract,  in  the  sense  that  its  validity  and  obligatory  effect 


490  PRIVATE    INTERNATIONAL    LAW. 

are  to  be  determined  and  controlled  by  that  law ;  and  when  valid 
there,  the  contract  will  be  sustained  everywhere,  and  accorded 
the  interpretation  required  by  the  law  of  the  place  where  made, 
when  the  law  is  properly  brought  to  the  attention  of  the  court, 
unless  the  contract  is  against  good  morals,  or  contravenes  a  set- 
tled policy  of  the  state  or  country  in  whose  tribunals  its  enforce- 
ment is  sought.  The  rule  is  founded  on  the  presumption  that 
parties  contract  with  reference  to  the  laws  to  which  they  are  sub- 
ject at  the  time,  and  on  the  principles  of  comity  prevailing  among 
civilized  nations.  But  it  does  not  extend  so  far  that  the  remedial 
system  and  methods  of  procedure  established  by  one  state  or 
country  will  yield  to  those  of  another,  nor  that  either  will  recog- 
nize or  enforce  those  of  the  other.  Each  provides  and  alters  at 
will  its  own  rules  and  regulations  in  the  administration  of  justice, 
to  which  those  seeking  redress  in  its  courts  must  conform. 

So  that,  the  solution  of  the  question  presented  involves  the 
inquiry  whether  the  provision  of  the  statute  above  quoted  apper- 
tains to  the  remedy  on  contracts  to  which  it  refers,  or  goes  to 
their  validity.  We  have  found  no  expression  on  the  question  by 
this  court,  though  it  has  been  the  subject  of  repeated  adjudica- 
tions both  in  England,  and  in  several  of  the  states.  This  pro- 
vision of  our  statute  is  copied  from  the  4th  section  of  the  Eng- 
lish Statute  of  Frauds;  and  in  the  case  of  Lcron.v  v.  Brozvn,  12 
C.  B.  (74  Eng.  C.  L.),  801,  where  the  precise  question  we  have 
before  us  arose,  it  was  held,  that  the  section  aflfected  the  remedy 
only,  and  was  so  applied  as  to  defeat  a  recovery  on  a  parol  con- 
tract not  to  be  performed  within  a  year,  which  was  made  in 
France,  where  it  was  capable  of  proof  by  parol  evidence.  The 
case  appears  to  have  been  thoroughly  argued  and  considered,  and 
the  decision  has  since  been  adhered  to  by  the  English  courts,  and 
followed  or  cited  with  approbation  by  many  American  cases,  and 
generally  accepted  by  text  writers,  as  the  established  law.  Bain 
v.  Whitehaven,  3  H.  L.  Cases,  i  ;  IVilliams  v.  Wheeler,  8  C.  B. 
N.  S.  316;  Madison  v.  Alderson,  L.  R.  8  App.  Case,  467,  488; 
Pritchard  v.  Norton,  106  U.  S.,  127;  Dozuer  v.  Chesebrough,  36 
Conn.,  39;  Townsend  v.  Hargrove,  118  Mass.,  326;  Bird  v.  Mon- 
roe, 66  Me.,  337;  Emery  v.  Burbank,  163  Mass.,  326;  Wald's 
Pallock  on  Contracts,  604-607,  and  notes.  Anson  on  Contracts, 
p.  79;  Brown  on  the  Statute  of  Frauds,  sections  136,  115a; 
Agnew  on  Statute  of  Frauds,  64-66 ;  Wood  on  Statute  of  Frauds, 
section  166;  Wharton  on  Conflict  of  Laws,  section  690.  And 
while  the  case  of  Leroux  v.  Brozvn  has  been  criticized,  those  criti- 


CONTRACTS.  491 

cisms  have  been  directed  chiefly  to  the  distinction  drawn  between 
the  4th  and  17th  sections  of  the  statute,  and  the  opinion  ex- 
pressed that  the  language  of  the  latter  section  was  such  as  to 
render  invalid  contracts  within  its  provisions,  for  which  reason 
it  did  not,  as  did  section  4,  constitute  a  regulation  affecting  the 
remedy.  This  distinction  has  not  met  with  general  approval, 
and  has  been  repudiated  in  some  of  the  latter  cases,  which  hold, 
that  the  17th  section  relates  to  the  remedy,  like  section  4,  and 
that  the  difference  in  the  phraseology  of  the  two  sections  is  not 
such  as  to  warrant  a  different  interpretation  in  that  respect,  but 
that  both  sections  prescribe  rules  of  evidence  which  courts,  where 
the  remedy  is  sought,  are  required  to  observe.  Toiimscnd  v. 
Hargrove,  118  Mass.,  326;  Bird  v.  Monroe,  66  Me.,  337,  343; 
Pritchard  v.  Norton,  106  U.  S.,  127;  Madison  v.  Aldcrson,  L.  R. 
8  App.  Cas.,  467-488;  Brown  on  the  Statute  of  Frauds,  section 
136,  note. 

In  Story  on  Conflict  of  Laws,  section  262,  a  different  view 
of  the  question  was  taken,  which  has  been  adopted  by  some  courts; 
but  the  decided  weight  of  authority  is  in  accordance  with  the 
decision  in  Leroux  v.  Brown.  The  views  of  Judge  Story  were 
brought  to  the  attention  of  the  court  in  that  case;  and,  in  an 
edition  of  his  work  published  after  that  case  was  decided,  a  sec- 
tion was  added,  in  which  it  is  said,  that  "the  statute  of  frauds 
is,  like  the  statute  of  limitations,  a  matter  affecting  the  remedy 
merely;  and  if  by  the  law  of  the  forum  no  action  can  be  main- 
tained on  a  particular  oral  contract,  if  made  in  that  country, 
the  like  rule  will  obtain  as  to  a  contract  made  elsewhere,  althousfh 
it  w-as  valid  by  the  law  of  the  place  where  made."  Story  on  Con- 
flict of  Laws,  7  ed.,  section  576. 

The  question  being  an  open  one  in  this  state,  we  are  not 
disinclined  to  consider  it  on  principle.  The  principle  which  must 
control  its  decision  is  the  fundamental  one  that  contracts  receive 
their  sanction  and  interpretation  from  the  law  of  the  place  where 
they  are  made  and  to  be  performed  ;  but  the  remedy  upon  them 
must  be  taken  and  pursued  according  to  the  law  of  the  place 
w^here  they  are  sought  to  be  enforced ;  and  a  decision  of  the  ques- 
tion will  be  reached  when  it  is  ascertained  within  which  of  these 
rules  the  statute  of  frauds  finds  its  appropriate  place.  The  lan- 
guage of  the  statute  under  consideration,  that  no  action  shall  be 
brought  on  any  agreement  therein  mentioned,  unless  it,  or  "some 
memorandum  or  note  thereof  is  in  writing  and  signed  bv  the 
party  to  be  charged,"  fairly  imports  that  the  agreement  precedes 


492  PRIVATE    INTERNATIONAL    LAW. 

the  written  menioranchim,  and  may  exist  as  a  complete  and  valid 
agreement,  independent  of  the  writing.  The  memorandum, 
which  is  merely  the  evidence  of  the  contract,  may  be  made  and 
signed  after  the  completion  of  the  agreement,  and  even  a  letter 
from  the  party  to  be  charged,  reciting  the  terms  of  the  agree- 
ment, is  sufficient  to  satisfy  the  requirements  of  the  statute; 
but  it  cannot  be  said  that  the  letter  constitutes  the  agreement; 
that  was  made  when  the  minds  of  he  parties  met  wuth  respect  to 
its  terms,  and  the  letter  furnishes  the  necessary  evidence  to  prove 
the  agreement  in  an  action  for  its  enforcement.  And  generally, 
when  parties  reduce  their  contracts  to  writing,  the  writing  be- 
comes the  evidence  of  the  agreement  which  they  had  previously 
entered  into;  and,  having  adopted  that  mode  of  evidencing  their 
agreement,  the  parties  are  not  allowed  to  m.ake  proof  of  it  by 
verbal  testimony.  This  statute,  in  plain  terms,  forbids  the  main- 
tenance of  an  action  in  any  of  the  courts  of  this  state,  on  any 
agreement  which,  by  its  terms,  is  not  to  be  performed  within  a 
year,  unless  the  action  is  supported  by  the  required  written  evi- 
dence. The  evidence  by  which  a  contract  shall  be  proved  is  no 
part  of  the  contract  itself,  but  its  admission  or  rejection  becomes 
a  part  of  the  proceeding  on  the  trial,  where  its  competency  and 
sufficiency  must  be  determined.  When  the  required  evidence  is 
lacking,  the  courts  must  refuse  the  enforcement  of  the  contract. 
And  it  seems  clear,  that  such  a  statutory  regulation  prescribing 
the  mode  or  measure  of  proof  necessary  to  maintain  an  action  or 
defense,  pertains  to  the  remedy,  and  constitutes  a  part  of  the 
procedure  of  the  forum  in  administering  the  remedy.  The  statute 
contams  no  exception  or  limitation  on  account  of  the  place  where 
the  contract  was  entered  into,  or  to  be  performed;  but  denies 
remedy  on  any  contract  of  the  kind  designated  by  it,  wherever 
made,  which  can  not  be  established  by  the  evidence  required. 

That  such  was  the  intended  scope  of  the  statute  is  manifest 
when  the  purpose  of  its  enactment  is  considered.  Its  well  known 
design  was,  as  declared  in  the  English  statute  of  frauds,  after 
which  ours,  and  those  of  most  of  the  states  are  patterned,  to, 
prevent  perjuries  and  fraudulent  practices  which  were  the  out- 
growth of  the  general  admission  of  parol  testimony  to  prove 
almost  every  kind  of  contract,  and  by  means  of  which  people 
were  often  stripped  of  their  estates,  and  burdened  with  liabilities 
by  testimony  of  alleged  conversations  and  verbal  declarations. 
The  opportunities  thus  afforded  for  the  perpetration  of  frauds, 
constituted  temptations  so  strong  for  the  commission  of  perjuries, 


CONTRACTS.  493 

that  legislation  excluding  tliat  kind  of  evidence  in  a  large  number 
of  cases  became,  or  was  considered  a  necessity.  These  mischiefs, 
to  remedy  which  was  the  chief  aim  of  the  statute,  arose  from  the 
admission  of  oral  evidence  in  trials  of  actions  and  suits,  and  in 
the  course  of  judicial  procedure ;  and  obviously,  the  opportunity 
and  temptation  for  the  commission  of  frauds  and  perjuries  by 
admitting  parol  proof  to  establish  the  contracts  with  which  the 
statute  is  concerned,  are  not  any  the  less  in  cases  where  the  agree- 
ment was  made  in  another  state  or  country,  than  in  those  where 
the  agreement  involved  is  one  made  in  this  state;  the  mischief 
is  the  same  in  either  case,  and  to  allow  the  former  to  be  so  proved, 
would,  that  far  at  least,  prevent  the  accomplishment  of  the 
salutary  purposes  of  the  statute.  The,  statute  is  founded  on  con- 
siderations of  public  policy,  and  those  of  a  moral  nature,  and 
declared  a  peremptory  rule  of  procedure  which  the  courts  of  this 
stale  are  not  at  liberty  to  disregard  in  defference  to  the  laws  of 
any  other  state  or  country. 

The  agreement  set  up  in  the  defendant's  answer  could  not, 
according  to  its  terms,  be  performed  within  one  year  from  the 
time  it  was  made.  An  action  upon  it  could  be  supported  only  by 
evidence  which  complied  with  the  statutory  requirements;  and  to 
be  available  as  a  counterclaim,  which  is  a  cross  action,  such  evi- 
dence was  indispensable.  It  was  not  offered,  and  the  court, 
we  think,  properly  excluded  the  parol  evidence  relied  on  to  prove 
the  agreement.  The  judgment  of  the  circuit  must  therefore  be 
reversed,  and  that  of  the  common  pleas  affirmed. 

Judginciif  accordingly. 

FIRST  NAT.  BANK  v.  SHAW,  1902. 
[70  Southwestern  Rep.  807.] 

McAlli.ster,  J.  The  only  question  presented  for  determi- 
nation upon  this  record  is  the  liability  of  the  defendant  Mrs.. 
Stella  V.  Harley  upon  the  following  note:  "$500.00.  Geneva, 
Ohio,  Dec.  3,  1892.  Six  months  after  date,  value  received,  we 
jointly  and  severally  i)romise  to  pay  to  the  I-'irst  Xational  P.ank 
of  Geneva,  at  their  banking  house,  $500.00,  interest  8%  after 
maturity.  Interest  paid  to  maturity,  $17.50.  D.  H.  Harley. 
Stella  V.  Harley.  M.  P.  Shaw."  Mrs.  Harley.  in  her  answer 
to  the  bill,  avers  that  she  was  a  married  woman  at  the  time  said 
note  was  executed,  and  relies  on  the  pica  of  coverture.  She 
further  avers  that   she   and    her   husband,   I).    H.    Ilarlev.    were 


494  PRIVATE    INTERNATIONAL    LAW. 

residents  of  and  living  in  the  state  of  Tennessee  at  the  time  said 
note  was  executed,  and  had  since  continuously  lived  in  this  state, 
and  she  denies  that  the  note  was  an  Ohio  contract. 

The  facts  found  by  the  court  of  chancery  appeals  are,  viz. : 
First.  The  note  sued  on  is  a  renewal  note.  The  original  note  was 
made  June  6,  1891.  It  was  renewed  December  5,  1891 ;  renewed 
again  January  4,  1892;  and  again  December  3,  1892;  the  note 
iast  renewed  or  made  being  the  one  in  suit.  Second.  Previous 
to  the  execution  of  the  first  note,  and  since  1889,  Mrs.  Harley 
was  a  married  woman,  living  with  her  husband  continuously  in 
Tennessee.  She  owned  no  property  in  the  state  of  Ohio.  Third. 
The  weight  of  the  proof  is,  and  we  so  find  as  a  fact,  that  she 
signed  all  the  notes  in  Tennessee ;  and  it  is  practically  conceded, 
and,  if  not  conceded,  we  find  the  fact  to  be,  that  she  signed  the 
note  sued  on  in  Tennessee.  Fourth.  The  original  note  was  nego- 
tiated in  Geneva,  Ohio.  The  note  sued  on  was  received  by  the 
bank  at  Geneva,  Ohio,  through  the  mail,  from  Chattanooga, 
Tenn.  Fifth.  It  is  conceded  that,  under  the  statute  law  of  Ohio, 
married  women  are  liable  in  that  state  on  their  contracts. 

It  will  be  preceived  that  the  legal  question  presented  is 
whether  a  married  woman,  domiciled  with  her  husband  in  Ten- 
nessee, is  liable  on  a  note  signed  by  her  in  this  state,  but  payable 
in  the  state  of  Ohio.  The  first  question,  of  course,  to  be  de- 
termined, is  whether,  upon  the  facts  found,  this  is  a  Tennessee 
or  Ohio  contract.  Says  Mr.  Tiedeman,  in  his  work  on  Commer- 
cial Paper  (page  506)  :  *Tt  is  not  the  law  of  the  place  where 
the  contract  was  signed  or  executed,  but  the  law  of  the  place 
where  the  contract  was  consummated,  by  delivery  or  otherwise, 
which  governs  the  construction  of  the  contract  made  in  one  state, 
to  be  performed  in  another.  Thus  notes  drawn  in  one  state,  and 
delivered  and  payable  in  another,  for  purchases  made  there,  are 
governed  by  the  law  of  the  latter  state,  and  are  considered  there 
made ;  for  by  delivery,  only,  the  act  of  making  is  fully  consum- 
mated." So  it  was  held  in  Hall  v.  Cordell,  142  U.  S.  116,  12 
Sup.  Ct.  154,  35  L.  Ed.  956:  "But  where  there  is  nothing  to 
show  that  the  parties  had  in  view,  in  respect  to  the  execution  of 
the  contract,  any  other  law  than  the  law  of  the  place  of  per- 
formance, that  law  must  determine  the  rights  of  the  parties." 
Hubble  V.  Improvement  Co.,  95  Tenn.  585,  32  S.  W.  965.  In 
2  Pars.  Cont.  586,  it  is  said :  "So  if  one  in  New  York  orders 
goods  from  Boston,  either  by  carrier  whom  he  points  out,  or 
in  the  usual  course  of  trade,  this  would  be  a  completion  of  the 


CONTRACTS.  495 

making  of  the  contract,  and  it  would  be  a  Boston  contract, 
whether  he  gave  no  note,  or  a  note  payable  in  Boston,  or  one 
without  express  place  of  payment."  We  think  it  quite  plain  that 
the  note  in  suit  is  an  Ohio  contract,  notwithstanding  it  was  signed 
by  Mrs.  Harley  in  Tennessee,  it  having  been  delivered  and  con- 
summated in  Ohio,  and  is  payable  in  that  state,  as  the  place  of 
perfomiance.  Armstrong  v.  Best,  112  N.  C.  59,  17  S.  E.  14,  25 
L.  R.  A.  188,  34  Am.  St.  Rep.  473;  Milliken  v.  Pratt,  125  Mass. 
374,  28  Am.  Rep.  241. 

The  next  inquir)  is  whether  the  plea  of  coverture  to  a  note 
made  in  Ohio,  valid  and  enforceable  against  a  married  woman  in 
that  state,  is  available  in  a  suit  on  said  note  in  this  state,  where 
such  a  contract  is  voidable  at  the  election  of  the  married  woman. 
In  Story,  Confl.  Laws,  c.  4,  §  103,  it  is  said :  "In  regard  to  ques- 
tions concerning  infancy,  competency  to  marry,  incapacities  inci- 
dent to  coverture,  guardianship,  and  other  personal  qualities  and 
disabilities,  the  law  of  the  domicile  or  birth,  or  other  fixed  dom- 
icile, is  not  generally  to  govern,  but  the  'lex  loci  contractus  aut 
actus,'  the  law  of  the  place  where  the  contract  is  made  or  the  act 
done,"  or,  as  he  elsewhere  sums  it  up,  "although  foreign  jurists 
generally  hold  that  the  law  of  the  domicile  ought  to  govern  in 
regard  to  the  capacity  of  persons  to  contract,  yet  the  common  law 
holds  a  different  doctrine,  namely,  that  lex  loci  contractus 
is  to  govern."  Story,  Confl.  Law,  §§  103,  241.  Chancellor 
Kent,  while  at  one  time  inclined  to  the  doctrine  of  the  civilians, 
afterwards  approved  the  doctrine  which  has  just  been  quoted 
from  Mr.  Story.  2  Kent,  Comm.  233,  note,  458,  459,  and  note. 
The  same  doctrine  was  announced  by  this  court  in  Pearl  v.  Hans- 
borough,  9  Humph.  426,  in  an  opinion  by  Judge  Turley.  Apply- 
ing this  rule,  it  was  held  in  INIilliken  v.  Pratt,  125  Mass.  374,  28 
Am.  Rep.  241  (Mr.  Justice  Gray  delivering  the  opinion  of  the 
court),  that  a  contract  of  guaranty,  signed  by  a  married  woman, 
domiciled  with  her  husband  in  Massachusetts,  and  sent  by  mail  to 
Maine,  where  it  was  accepted  and  acted  on,  was  a  contract  made 
in  the  state  of  Maine,  and,  when  sued  on  in  the  state  of  Massachu- 
setts, would  be  determined  by  the  law  of  Maine.  In  that  case  it 
appeared  that  by  the  statutes  of  Maine,  in  force  at  the  date  of 
the  contract  of  guaranty,  the  contracts  of  a  married  woman  were 
valid  and  enforceable  as  if  made  by  a  feme  sole,  while  the  law  of 
Massachusetts,  as  then  existing,  did  not  allow  her  to  enter  into  a 
contract  as  surety  or  for  the  accommodation  of  her  husband. 
But  it  further  appeared  that  since  the  making  of  the  contract  sued 


496  PRIVATE     INTERNATIONAL    LAW. 


on,  and  before  the  bringing  of  the  action,  the  law  of  Massachu- 
setts had  been  changed  so  as  to  enable  married  women  to  make 
such  contracts.  The  court  of  Massachusetts  therefore  permitted 
a  recovery  against  a  married  woman  on  the  contract  of  guaranty 
made  in  Maine.  See,  also,  Bell  v.  Packard,  69  Me.  105,  31  Am. 
Rep.  251.  But  in  Tennessee  the  contracts  of  a  married  woman 
are  voidable,  and  will  not  be  enforced  against  her  when  there  is  a 
plea  of  coverture.  It  would  be  a  strange  anomaly  to  hold  that 
such  a  contract  made  by  a  married  woman  in  Tennessee  would 
not  be  enforced  by  our  courts,  while  the  same  contract,  if  made  in 
another  state,  would  be  valid  and  enforceable.  As  stated  by  Mr. 
Justice  Gray  in  Milliken  v.  Pratt,  supra :  "As  the  law  of  an- 
other state  can  neither  operate  nor  be  executed  in  this  state  by  its 
own  force,  but  only  by  the  comity  of  this  state,  its  operation  and 
enforcement  here  may  be  restricted  by  positive  prohibition  of 
statute.  *  *  *  It  is  possible,  also,  that  in  a  state  where  the 
common  law  prevailed  in  full  force,  by  which  a  married  woman 
was  deemed  incapable  of  binding  herself  by  any  contract  what- 
ever, it  might  be  inferred  that  such  utter  incapacity,  lasting 
throughout  the  joint  lives  of  husband  and  wife,  must  be  cc«^- 
sidered  as  so  fixed  by  the  settled  policy  of  the  state  for  the  protec- 
tion of  its  own  citizens  that  it  could  not  be  held  by  the  courts  of 
that  state  to  yield  to  the  law  of  another  state  in  which  she  might 
undertake  to  contract."  While  it  is  true,  as  contended  by  counsel 
in  his  very  able  argument,  that  the  tendency  of  legislation  in 
Tennessee  is  to  enlarge  the  contractual  power  of  married  women, 
yet  such  power  is  very  limited  and  circumscribed,  and  the  settled 
policy  of  this  state  is  to  declare  nugatory  contracts  made  by  her 
whenever  her  plea  of  coverture  is  interposed.  In  Bank  v.  Walker, 
14  Lea,  299,  it  was  held  that  the  lex  loci  contractus  would  govern 
when  not  repugnant  to  the  lex  fori.  The  court  stated  the  rule 
to  be:  "Whether  we  consider  the  subject-matter  under  the  head 
of  comity  and  its  rules,  or  under  that  of  real  and  person  statutes 
and  its  rules,  either  or  both  sustain  the  position  that  the  lex  loci 
contractus  as  to  relations  and  property  rights  will  prevail  over  the 
lex  fori,  unless  the  enforcement  of  the  former  will  work  an 
injury  to  the  subjects  of  the  latter,  or  is  prohibited  by  the  laws 
of  the  latter."  It  was  further  said  that  rights  and  contracts  aris- 
ing under  the  laws  of  a  foreign  state  will  not  be  enforced  here, 
except  under  the  doctrine  of  comity  of  states,  and  that  this  doc- 
trine neither  requires  nor  sanctions  the  enforcement  in  the  courts 
of  this  state  of  statutory  rights  and  contracts  arising  under  the 


CONTRACTS.  497 

laws  of  a  foreign  state  which  are  repugnant  to  tlie  ix>licy  and 
spirit  of  our  laws. 

For  the  reasons  indicated,  the  decree  of  the  court  of  chancery 
appeals  is  affirmed. 

BOWLES  V.  FIELD,   1897. 
[78  Fed.  Rep.  74^- J 

BAKER.  District  Judge.  This  is  a  demurrer  to  a  part  of  the 
amendment  to  the  bill  of  complaint  which  is  exhibited  here  to  pro- 
cure the  foreclosure  of  a  mortgage  upon  real  estate  situated  in  the 
state  of  Indiana.  The  larger  part  of  the  consideration  of  the  note, 
which  was  executed  in  this  state,  and  which  is  secured  by  the 
mortgage  in  suit,  rests  upon  certain  notes  alleged  to  have  been 
executed  by  Airs.  Field,  in  the  state  of  Ohio,  as  the  surety  of  her 
husband.  The  note  in  suit  is  for  money  borrowed  by  Mrs.  Field 
to  pay  ofif  the  notes  executed  by  her  in  Ohio  as  surety  of  her  hus- 
band, and  also  for  a  certain  other  sum  of  money  included  therein. 
The  validity  of  the  note  as  to  this  latter  sum  of  money  is  not 
material  to  the  present  inquiry. 

It  is  insisted  that  the  notes  executed  by  her  as  surety  in  Ohio, 
and  payable  there,  were  void  by  reason  of  her  coverture,  and  that 
the  note  executed  by  her  for  monev  borrowed  to  pay  them  oflf  is 
pro  tanto  invalid.  It  is  evident  that  if  the  notes  executed  by  her 
in  Ohio  as  surety  for  her  husband  were  valid  and  binding  obliga- 
tions, which,  by  an  action  of  law.  she  might  have  been  compelled 
to  pa^■.  in  that  event  she  might  voluntarily  do  what  she  would  have 
been  compelled  to  do, — that  is,  pay  them  off ;  or,  if  needful,  she 
might  lawfully  borrow  money  to  make  such  payment,  and  execute 
a  valid  note  to  evidence  such  loan.  It  is  conceded  that  at  the  time 
these  notes  were  executed,  to  take  up  which  she  borrowed  money, 
the  law  of  Ohio  gave  to  a  married  woman  the  same  power 
to  bind  herself  by  contract  as  if  she  were  unmarried.  It  is  also 
admitted  that,  if  she  had  been  a  resident  of  Ohio  when  these  notes 
were  executed,  she  would  have  been  legally  bound  to  pay  them, 
and  that,  if  she  borrowed  money  in  this  state  to  pay  off  her  own 
valid  debts,  she  would  have  the  power  to  execute  a  valid  note  for 
the  monev  she  borrowed.  Ekit  it  is  earnestly  contended  that,  being 
a  resident  of  Indiana,  and  having  a  permanent  domicile  therein, 
a  note  executed  by  her  while  transiently  in  Ohio  to  a  citizen  of 
Ohio  is  invalid,  because,  by  the  law  of  her  domicile,  she  was  pro- 
hibited from  entering  into  a  contract  of  suretyship.  It  is  not 
32 


498  PRIVATE    INTERNATIONAL    LAW. 

charged  that  she  went  to  Ohio,  and  executed  the  notes  as  surety 
of  her  husband,  for  the  purpose  of  evading  the  Islw  of  her  domicile. 

Whatever  may  be  the  views  of  foreign  jurists,  it  is  settled 
as  the  general  rule,  in  countries  where  the  common  law  is  pre- 
valent, that  the  execution,  interpretation,  and  validity  of  contracts 
are  to  be  governed  by  the  law  of  the  place  where  the  contract  is 
made.  This  rule  is  subject  to  som.e  exceptions,  among  which  are 
that  the  courts  of  no  country  or  state  are  under  any  obligation 
to  enforce  contracts  which  are  contrary  to  good  morals,  or  are 
violative  of  its  public  policy,  or  are  forbidden  by  its  positive  law. 
At  common  law  a  married  w^oman  was  disabled  to  bind  herself 
to  a  promissory  note  either  as  principal  or  surety.  Her  promis- 
sory notes  were  simply  void.  But  long  before  the  feme  defendant 
executed  the  notes  in  Ohio  as  the  surety  of  her  husband,  all  the 
lesral  disabilities  of  married  women  to  make  contracts  were  abro- 
gated,  except  as  otherwise  provided,  by  the  legislature  of  this 
state.  It  was  provided  that  a  married  woman  should  not  enter 
into  any  contract  of  suretyship.  It  is  clear  that  this  limitation  on 
her  general  power  to  contract  has  no  extraterritorial  force.  The 
law  of  this  state  could  not  prevent  a  married  woman  from  making 
a  contract  elsewhere ;  and  her  ability  to  contract  with  a  citizen  of 
Ohio  while  she  was  in  that  state  would  be  governed  by  the  lex 
loci  contractus. 

Judge  Story,  after  a  careful  review  of  the  authorities,  says : 

"That  in  respect  to  questions  of  minority  or  majority,  com- 
petency or  incompetency  to  marry,  incapacities  incident  to  cover- 
ture, guardianship,  emancipation,  and  other  personal  qualities  and 
disabilities,  the  law  of  the  domicile  of  birth,  or  the  law  of  any  other 
acquired  and  fixed  domicile,  is  not  generally  to  govern,  but  the  lex 
loci  contractus  aut  actus, — the  law  of  the  place  where  the  contract 
is  made  or  the  act  is  done."     Story,  Confl.  Laws  (7th  Ed.)  §  103. 

In  Scudder  v.  Bank,  91  U.  S.  406,  the  supreme  court  sums 
up  the  general  principles  in  tliese  words: 

"Matters  bearing  upon  the  exectition,  the  interpretation,  and 
the  validity  of  a  contract  are  determined  by  the  law  of  the  place 
where  the  contract  is  made.  Matters  connected  with  its  perform- 
ance are  regulated  by  the  law  prevailing  at  the  place  of  perform- 
ance. Matters  respecting  the  remedy,  such  as  bringing  of  suit, 
admissibility  of  evidence,  statutes  of  limitation,  depend  upon  the 
law  of  the  place  where  the  suit  is  brought." 


CONTRACTS.  499 

'  In  Pearl  v.  Hansborong'h,  9  Humph.  426,  the  supreme  court 
of  Tennessee  said  that  a  contract  for  the  purchase  of  slaves  made 
by  a  married  woman  in  that  state  was  void,  although  she  was  a 
citizen  of  the  state  of  Mississippi,  by  whose  laws  such  a  purchase 
by  her  would  have  been  valid. 

In  Evans  v.  Beaver,  50  Ohio  St.  190,  33  N.  E.  643,  it  was 
held,  where  a  married  woman  resident  in  Indiana  entered  into  a 
contract  in  that  state  which  was  made  payable  there,  that  a  mort- 
gage duly  executed  by  her  upon  real  estate  owned  by  her  in  Ohio 
to  secure  such  contract  could  not  be  enforced. 

In  Bell  V.  Packard,  69  Me.  105,  the  plaintiff,  a  resident  of 
Skowhegan,  ]\Ie.,  holding  an  overdue  note  against  Alvin  Packard, 
the  husband  of  the  defendant.  Harriet  A.  Packard,  then  a  domi- 
ciled resident  of  Cambridge,  Mass.,  wrote  the  note  in  suit  at  Skow- 
hegan, and  inclosed  the  same  m  a  letter  directed  to  Alvin  Packard, 
at  Cambridge,  and  there  received  by  him,  agreeing  m  the  letter  to 
surrender  the  old  note  upon  the  delivery  of  the  new  one,  signed 
by  him  with  a  good  surety.  The  new  note  was  duly  signed  by 
Alvin  Packard  and  the  defendant,  at  Cambridge,  and  there  mailed 
to,  and  was  received  by  the  plaintiff  at  Skowhegan.  The  plaintiff 
thereupon  mailed,  at  Skowhegan,  the  old  note  to  Alvin  Packard, 
at  Cambridge,  who  duly  received  the  same.  The  defendant  signed 
the  note  as  surety  of  Alvin  Packard,  her  husband,  without  any 
consideration  received  by  her,  or  any  benefit  to  her  separate  estate. 
At  the  time  the  note  was  signed,  a  married  woman  could  not  bind 
herself  in  such  a  way  in  Massachusetts,  but  she  could  in  Maine. 
The  defendant,  Mrs.  Packard,  being  sued  in  Maine,  was  held 
liable. 

In  Milliken  v.  Pratt,  125  Mass.  374,  it  was  held  that  a  note 
executed  in  Maine  by  a  married  woman  domiciled  in  and  a  citizen 
of  Massachusetts,  which  note  a  married  woman  was  allowed  by 
the  laws  of  Maine  to  make,  but  was  not,  by  the  laws  of  Massachu- 
setts, capable  of  making,  would  sustain  an  action  against  her  in 
the  courts  of  Massachusetts,  although  the  note  was  executed  by 
letter  sent  by  her  in  Massachusetts  to  tb.e  payee  in  Maine. 

See,  also.  Klinck  v.  Price,  4  W.  Va.  4;  Robinson  v.  Queen. 
^7  Tenn.  445,  i  [  S.  W.  38;  Ruhe  v.  Buck.  124  Mo.  178.  27  S.  W. 
412;  Bauni  v.  Birchall,  150  Pa.  St.  164,  24  .Vtl.  620;  Evans  v. 
Cleary,  125  Pa.  St.  204.  17  Atl.  440;  Story  Confl.  Laws.  (7th  Ed.) 
§§  101-103. 

There  is  no  statute  in  this  state  which  prohibits  a  married 
woman  from  executing  a  note  or  mortgage  to  raise  money  to  pay 


500  PRIVATE    INTERNATIONAL    LAW. 

off  a  debt  for  which  she  is  personally  liable.  The  notes  executed 
by  her  in  Ohio,  although  as  between  herself  and  her  husband  she 
was  only  surety,  were  by  the  lex  loci  contractus  her  personal 
obligation,  and  made  the  debt  evidenced  thereby,  as  between  her- 
self and  the  payee  of  the  notes,  her  personal  debt.  When  she 
gave  her  own  individual  note  as  sole  maker  to  take  up  the  old 
notes  on  which  she  was  holden  as  surety,  it  became  her  own  pri- 
mary obligation.  The  old  notes  were  surrendered  to  her  in  con- 
sideration of  her  executing,  as  sole  maker,  the  note  in  suit.  There 
is  no  statute  here  which  prohibits  a  married  woman  from  being 
sued  and  held  liable  upon  such  a  note ;  and  a  mortgage  on  her  own 
land,  if  it  secures  such  note,  is  valid.  The  demurrer  will  there- 
fore be  overruled,  with  leave  to  answer. 

LIVERPOOL  STEAM  CO.  v.  PHENIX  INS.  CO.,  1888. 
[129  U.  S.  397-] 

Mr.  Justice  Gray  delivered  the  opinion  of  the  court. 

This  is  an  appeal  by  a  steamship  company  from  a  decree 
rendered  against  it  upon  a  libel  in  admiralty,  "in  a  cause  of  action 
arising  from  breach  of  contract,"  brought  by  an  insurance  com- 
pany, claiming  to  be  subrogated  to  the  rights  of  the  owners  of 
goods  shipped  on  board  the  Montana,  one  of  the  appellant's 
steamships,  at  New  York,  to  be  carried  to  Liverpool,  and  lost  or 
damaged  by  her  stranding,  because  of  the  negligence  of  her  mas- 
ter and  officers,  in  Holyhead  Ray  on  the  coast  of  Wales,  before 
reaching  her  destination. 

In  behalf  of  the  appellant,  it  was  contended  that  the  loss  was 
caused  by  perils  of  the  sea,  without  any  negligence  on  the  part  of 
master  and  officers ;  that  the  appellant  was  not  a  common  carrier ; 
that  it  was  exempt  from  liability  by  the  terms  of  the  bills  of  lad- 
ing ;  and  that  the  libellant  had  not  been  subrogated  to  the  rights 
of  the  owners  of  the  goods. 

The  question  of  negligence  is  fully  and  satisfactorily  dis- 
cussed in  the  opinion  of  the  District  Court,  reported  in  17  Fed. 
Rep.  377,  and  in  that  of  the  Circuit  Court,  reported  in  22  Blatch- 
ford,  ^^^2.  It  is  largely,  if  not  wholly,  a  question  of  fact,  the  de- 
cision of  which  by  the  Circuit  Court  cannot  be  reviewed  here ;  and 
so  far  as  it  can  possibly  be  held  to  be  or  to  involve  a  question  of 
law,  it  is  sufficient  to  say  that  the  circumstances  of  the  case,  as 
found  by  the  Circuit  Court,  clearly  warrant,  if  they  do  not  re- 
quire a  court  or  jury,  charged  with  the  duty  of  determining  issues 


CONTRACTS.  501 

of  fact,  to  find  that  the  stranding  was  owing  to  the  negligence  of 
the  officers  of  the  ship. 

The  contention  that  the  appellant  is  not  a  common  carrier 
may  also  be  shortly  disposed  of. 

By  the  settled  law,  in  the  absence  of  some  valid  agreement 
to  the  contrary,  the  owner  of  a  general  ship,  carrying  goods  for 
hire,  whether  employed  in  internal,  in  coasting  or  in  foreign  com- 
merce, is  a  common  carrier,  with  the  liability  of  an  insurer  against 
all  losses,  except  only  such  two  irresistable  causes  as  the  act  of 
God  and  public  enemies.  Molloy,  bk.  2,  c.  2,  §  2 ;  Bac.  Ab.  Car- 
rier, A;  Barclay  v.  Ciicidla  y.  Gana,  3  Doug.  389;  2  Kent  Com. 
59^.  599;  Story  on  Bailments,  §501;  Tlic  Niagara,  21  How.  7, 
23;  The  Lady  Pike,  21  Wall,  i,  14. 

In  the  present  case,  the  Circuit  Court  has  found  as  facts: 
"The  Montana  was  an  ocean  steamer,  built  of  iron,  and  performed 
regular  service  as  a  common  carrier  of  merchandise  and  passen- 
gers between  the  ports  of  Liverpool,  England,  and  New  York,  in 
the  line  commonly  known  as  the  Guion  Line.  By  her,  and  by 
other  ships  in  that  line,  the  respondent  was  such  common  carrier. 
On  March  2,  1880,  the  Montana  left  the  port  of  New  York,  on 
one  of  her  regular  voyages,  bound  for  Liverpool,  England,  with 
a  full  cargo,  consisting  of  about  twenty-four  hundred  tons  of 
merchandise,  and  with  passengers."  The  bills  of  lading,  annexed 
to  the  answer  and  to  the  findings  of  fact,  show  that  the  four  ship- 
ments in  question  amounted  to  less  than  one  hundred  and  thirty 
tons,  or  hardly  more  than  one-twentieth  part  of  the  whole  cargo. 
It  is  clear,  therefore,  upon  this  record,  that  the  appellant  is  a  com- 
mon carrier,  and  liable  as  such,  unless  exempted  by  some  clause 
m  the  bills  of  lading. 

In  each  of  the  bills  of  lading,  the  excepted  perils,  for  loss  or 
damage  from  which  it  is  stipulated  that  the  appellant  shall  not  be 
responsible,  include  "barratry  of  master  or  mariners."  and  all 
perils  of  the  seas,  rivers  or  navigation,  described  more  particu- 
larly in  one  of  the  bills  of  lading  as  "collision,  stranding  or  other 
peril  of  the  seas,  rivers  or  navigation,  of  whatever  nature  or  kind 
soever,  and  howsoever  such  collision,  stranding  or  other  peril  may 
be  caused,"  and  in  the  other  three  bills  of  lading  described  more 
generally  as  any  "accidents  of  the  seas,  rivers  and  steam  naviga- 
tion, of  whatever  nature  or  kind  soever;"  and  each  bill  of  lading 
adds,  in  the  following  words  in  the  one,  and  in  equivalent 
words  in  the  others,  "whether  arising  from  the  negligence,  de- 


502  PRIVATE    INTERNATIONAL    LAW. 

fault,  or  error  in  judgment  of  the  master,  mariners,  engineers  or 
others  of  the  crew,  or  otherwise,  howsoever." 

If  the  bills  of  lading  had  not  contained  the  clause  last  quoted, 
it  is  quite  clear  that  the  other  clauses  would  not  have  relieved  the 
appellant  from  liability  for  the  damage  to  the  goods  from  the 
stranding  of  the  ship  through  the  negligence  of  her  officers.  Col- 
lision or  stranding  is,  doubtless,  a  peril  of  the  seas ;  and  a  policy 
of  insurance  against  perils  of  the  seas  covers  a  loss  by  stranding 
or  collision,  although  arising  from  the  negligence  of  the  master 
or  crew,  because  the  insurer  assumes  to  indemnify  the  assured 
against  losses  from  particular  perils,  and  the  assured  does  not 
warrant  that  his  servants  shall  use  due  care  to  avoid  them.  Gen- 
eral Ins.  Co.  V.  Sherwood,  14  How.  351,  364,  365;  Orient  Ins. 
Co.  V.  Adams,  123  U.  S.  67,  73;  Copeland  v.  Nezir  England  Ins. 
Co.,  2  Met.  432,  448-450.  But  the  ordinary  contract  of  a  carrier 
does  involve  an  obligation  on  his  part  to  use  due  care  and  skill  in 
navigating  the  vessel  and  carrying  the  goods;  and,  as  is  every- 
where held,  an  exception,  in  the  bill  of  lading,  of  perils  of  the  sea 
or  other  specified  perils  does  not  excuse  him  from  that  obligation, 
or  exempt  him  from  liability  for  loss  or  damage  from  one  of  those 
perils,  to  which  the  negligence  of  himself  or  his  servants  has  con- 
tributed. New  Jersey  Steam  Navigation  Co.  v.  Merchants'  Bank, 
6  How.  344;  Express  Co.  v.  Kountze,  8  Wall.  341;  Transporta- 
tion Co.  V.  Dozvner,  11  Wall.  129;  Grill  v.  General  Iron  Screw 
Co.,  L.  R.  I  C.  P.  600.  and  L.  R.  3  C.  P.  476;  The  Xantho,  12 
App.  Cas.  503,  510,  515- 

We  are  then  brought  to  the  consideration  of  the  principal 
question  in  the  case,  namely,  the  validity  and  effect  of  that  clause 
in  each  bill  of  lading  by  which  the  appellant  undertook  to  exempt 
itself  from  al!  responsibility  for  loss  or  damage  by  perils  of  the 
sea,  arising  froni  negligence  of  the  master  and  crew  of  the  ship. 

The  question  appears  to  us  to  be  substantially  determined  by 
the  judgment  of  this  court  in  Railroad  Co.  v.  Lockwood,  ly  Wall. 

357- 

That  case,  indeed,  differed  in  its  facts  from  the  case  at  bar. 

It   was  an   action  brought  against  a  railroad   corporation   by  a 

drover  who,  while  being  carried  with  his  cattle  on  one  of  its  trains 

under  an  agreement  which  it  had  required  him  to  sign,  and  by 

which  he  was  to  pay  certain  rates  for  the  carriage  of  the  cattle,  to 

pass  free  himself,  and  to  take  the  risks  of  all  injuries  to  himself 

or  to  them,  was  injured  by  the  negligence  of  the  defendant  or  its 

servants. 


CONTRACTS.  503 

The  judgment  for  the  plaintiff,  liowever,  was  not  rested  upon 
the  form  of  the  agreement,  or  upon  any  difference  between  rail- 
road corporations  and  other  carriers,  or  between  carriers  by  land 
and  carriers  by  sea,  or  between  earners  of  passengers  and  carriers 
of  goods,  but  upon  the  broad  ground  that  no  public  carrier  is  per- 
mitted by  law  to  stipulate  for  an  exemption  from  the  consequences 
of  the  negligence  of  himself  or  his  servants. 

The  very  question  there  at  issue,  defined  at  the  beginning  of 
the  opinion  as  "whether  a  railroad  company,  carrying  passengers 
for  hire,  can  lawfully  stipulate  not  to  be  answerable  for  their  own 
or  their  servants'  negligence  in  reference  to  such  carriage,"  was 
stated  a  little  further  on  in  more  general  terms  as  "the  question 
before  propounded,  namely,  whether  common  carriers  may  excuse 
themselves  from  liability  for  negligence;"  and  a  negative  answer 
to  the  question  thus  stated  vvas  a  necessary  link  in  the  logical  chain 
of  conclusions  announced  at  the  end  of  the  opinion  as  constituting 
the  ratio  dccidci'di.     ly  Wall.  350.  363,  384. 

The  course  of  reasoning,  supported  by  elaborate  argument 
and  illustration,  and  by  copious  references  to  authorities,  by  which 
those  conclusions  were  reached,  may  be  summed  up  as  follows : 

By  the  common  law  of  England  and  America  before  the 
Declaration  of  Independence,  recognized  by  the  weight  of  Eng- 
lish authority  for  half  a  century  afterwards,  and  upheld  by  deci- 
sions of  the  highest  courts  of  many  States  of  the  Union,  common 
carriers  could  not  stipulate  for  immunity  for  their  own  or  their 
servants'  negligence.  The  English  Railway  and  Canal  Traffic 
Act  of  1854,  declaring  void  all  notices  and  conditions  made  by 
those  classes  of  common  carriers,  except  such  as  should  be  held 
by  the  court  or  judge  before  whom  the  case  should  be  tried  to  be 
just  and  reasonable,  was  substantially  a  return  to  the  rule  of  the 
common  law. 

The  only  important  modification  by  the  Congress  of  the 
United  States  of  the  previously  existing  law  on  this  subject  is  the 
act  ot  1851,  to  limit  the  liability  of  ship-owners.  ( Act  of  March  3. 
1851,  c.  43;  g  Stat.  635;  Rev.  Stat.  §§4282-4289,)  and  that  act 
leaves  them  liable  without  limit  for  their  own  negligence,  and 
liable  to  the  extent  of  the  ship  and  freight  for  the  negligence  or 
nnsconduct  of  their  master  and  crew. 

The  employment  of  a  common  carrier  is  a  public  one,  charg- 
ing him  witii  the  duty  of  accommodating  the  public  in  the  line  of 
his  employment.  A  common  carrier  is  sucii  by  virtue  of  his  occu- 
pation, not  by  virtue  of  the  resiwnsibilities  under  which  he  rests. 


504  PRIVATE    INTERNATIONAL    LAW. 

Even  if  the  extent  of  these  responsibihties  is  restricted  by  law  or 
by  contract,  the  nature  of  his  occupation  makes  him  a  common 
carrier  still.  A  common  carrier  mav  become  a  private  carrier, 
or  a  bailee  for  hire,  when,  as  a  matter  of  accommodation  or 
special  engagement,  he  undertakes  to  carry  something  which  it 
is  not  his  business  to  carry.  But  when  a  carrier  has  a  regularly 
established  business  for  carrying  all  or  certain  articles,  and  espe- 
cially if  that  carrier  is  a  corporation  created  for  the  purpose  of 
the  carrying  trade,  and  the  carriage  of  the  articles  is  embraced 
within  the  scope  of  its  chartered  powers,  it  is  a  common  carrier, 
and  a  special  contract  about  its  responsibility  does  not  divest  it  of 
that  character. 

The  fundamental  principle,  upon  which  the  law  of  common 
carriers  was  established,  was  to  secure  the  utmost  care  and  dili- 
gence in  the  performance  of  their  duties.  That  end  was  efifected 
in  regard  to  goods,  by  charging  the  common  carrier  as  an  insurer, 
and  in  regard  to  passengers,  by  exacting  the  highest  degree  of 
carefulness  and  diligence.  A  carrier  who  stipulates  not  to  be 
bound  to  the  exercise  of  care  and  diligence  seeks  to  put  off  the 
essential  duties  of  his  employment. 

Nor  can  those  duties  be  waived  in  respect  to  his  agents  or 
servants,  especially  where  the  carrier  is  an  artificial  being,  inca- 
pable of  acting  except  by  agents  and  servants.  The  law  demands 
of  the  carrier  carefulness  and  diligence  in  performing  the  ser- 
vice; not  merely  an  abstract  carefulness  and  diligence  in  proprie- 
tors and  stockholders  who  take  no  active  part  in  the  business.  To 
admit  such  a  distinction  in  the  law  of  common  carriers,  as  the 
business  is  now  carried  on,  would  be  subversive  of  the  very  object 
of  the  law. 

The  carrier  and  his  customer  do  not  stand  upon  a  footing  of 
equality.  The  individual  customer  has  no  real  freedom  of  choice. 
He  cannot  afford  to  higgle  or  stand  out,  and  seek  redress  in  the 
courts.  He  prefers  rather  to  accept  any  bill  of  lading,  or  to  sign 
any  paper,  that  the  carrier  presents ;  and  in  most  cases  he  has  no 
alternative  but  to  do  this,  or  to  abandon  his  business. 

Special  contracts  between  the  carrier  and  the  customer,  the 
terms  of  which  are  just  and  reasonable  and  not  contrary  to  public 
policy,  are  upheld ;  such  as  those  exempting  the  carrier  from  re- 
sponsibility for  losses  happening  from  accident,  or  from  dangers 
of  navigation  that  no  human  skill  or  diligence  can  guard  against ; 
or  for  money  or  other  valuable  articles,  liable  to  be  stolen  or  dam- 
aged— unless  informed  of  their  charatcer  or  value ;  or  for  perish- 


CONTRACTS.  505 

able  articles  or  live  animals,  when  injured  without  default  or  neg- 
ligence of  the  carrier.  J3ut  the  law  does  not  allow  a  public  car- 
rier to  abandon  altogether  his  obligations  to  the  public,  and  to 
stipulate  for  exemptions  which  arc  unreasonable  and  improper, 
amounting  to  an  abnegation  of  the  essential  duties  of  his  employ- 
ment. 

It  being  against  the  policy  of  the  law  to  allow  stipulations 
which  will  relieve  the  railroad  company  from  the  exercise  of  care 
or  diligence,  or  which,  in  other  words,  will  excuse  it  for  negli- 
gence in  the  performance  of  its  duty,  the  company  remains  liable 
for  such  negligence. 

This  analysis  of  the  opinion  in  Railroad  Co.  v.  Lockzvood 
shows  thac  it  affirms  and  rests  upon  the  doctrine  that  an  express 
stipulation  by  any  common  carrier  for  hire,  in  a  contract  of  car- 
riage, that  he  shall  be  exempt  from  liability  for  losses  caused  by 
the  negligence  of  himself  or  his  servants,  is  unreasonable  and 
contrary  to  public  policy,  and  consequently  void.  And  such  has 
always  been  the  understanding  of  this  court,  expressed  in  several 
cases.  Express  Co.  v.  Caldwell,  21  Wall.  264,  268;  Railroad  Co. 
v.  Pratt,  22  Wall.  123,  134;  Bank  of  Kentucky  v.  Adams  Express 
Co.,  93  U.  S.  174,  183;  Railway  Co.  v.  Stevens,  95  U.  S.  655; 
Hart  V.  Pennsylvania  Railroad,  112  U.  S.  331,  338;  Phoenix  Ins. 
Co.  V.  Erie  Transportation  Co.,  117  U.  S.  312,  322;  Inman  v. 
South  Carolina  Raihvay,  ante,  128. 

The  general  doctrine  is  nowhere  stated  more  explicitly  than 
in  Hart  v.  Pennsylvania  Railroad  and  Proenix  Ins.  Co.  v.  Erie 
Transportation  Co.,  just  cited ;  and  there  does  not  appear  to  us 
to  be  anything  in  the  decision  or  opinion  in  either  of  those  cases 
which  supports  the  appellant's  position. 

In  the  one  case,  a  contract  fairly  made  between  a  railroad 
company  and  the  owner  of  the  goods,  and  signed  by  the  latter, 
by  which  he  was  to  pay  a  rate  of  freight  based  on  the  condition 
that  the  company  assumed  liability  only  to  the  extent  of  an  agreed 
valuation  of  die  goods,  even  in  case  of  loss  or  damage  by  its  neg- 
ligence, was  upheld  as  just  and  reasonable,  because  a  proper  and 
lawful  mode  of  securing  a  due  proportion  between  the  amount  for 
which  the  carrier  might  be  responsible  and  the  comjxMisation 
which  he  received,  and  of  protecting  himself  against  extravagant 
or  fanciful  valuations — which  is  quite  different  from  exempting 
himself  from  all  responsibility  whatever  for  the  negligence  of 
himself  and  his  servants. 

In  the  other,  the  decision  was  that,  as  a  common  carrier 


506  PRIVATE    INTERNATIONAL    LAW. 

might  lawfully  obtain  from  a  third  person  insurance  on  the  goods 
carried  against  loss  by  the  usual  perils,  though  occasioned  by 
negligence  of  the  carrier's  servants,  a  stipulation  in  a  bill  of  lad- 
ing that  the  carrier,  when  liable  for  the  loss,  should  have  the  bene- 
fit of  any  insurance  effected  on  the  goods,  was  valid  as  between 
the  carrier  and  the  shipper,  even  when  the  negligence  of  the  car- 
rier's servants  was  the  cause  of  the  loss.  Upholding  an  agree- 
ment by  which  the  carrier  receives  the  benefit  of  any  insurance  ob- 
tained by  the  shipper  from  a  third  person  is  quite  different  from 
permitting  the  carrier  to  compel  the  shipper  to  obtain  insurance, 
or  to  stand  his  own  insurer,  against  negligence  on  the  part  of  the 
carrier. 

It  was  argued  for  the  appellant,  that  the  law  of  New  York, 
the  lex  loci  contractus,  was  settled  by  recent  decisions  of  the 
Court  of  Appeals  of  that  state  in  favor  of  the  right  of  a  carrier 
of  goods  or  passengers,  by  land  or  water,  to  stipulate  for  exemp- 
tion from  all  liability  for  his  own  negligence.  Mynard  v.  Syra- 
cuse Railroad,  71  N.  Y.  180;  Spinetti  v.  Atlas  Steamship  Co.,  80 
N.  Y.  71. 

But  on  this  subject,  as  on  any  question  depending  upon  mer- 
cantile law  and  not  upon  local  statute  or  usage,  it  is  well  settled 
that  the  courts  of  the  United  States  are  not  bound  by  decisions  of 
the  courts  of  the  State,  but  will  exercise  their  own  judgment, 
even  when  their  jurisdiction  attaches  only  by  reason  of  the  citi- 
zenship of  the  parties,  in  an  action  at  law  of  which  the  courts  of 
the  State  have  concurrent  jurisdiction,  and  upon  a  contract  made 
.and  to  be  performed  within  the  State.  Railroad  Co.  v.  Lock- 
wood,  17  Wall.  357,  368;  Myrick  v.  Michigan  Central  Railroad, 
107  U.  S.  102 ;  Carpenter  v.  Providence  Washington  Ins  Co.,  16 
Pet.  495,  511 ;  Swift  v.  Tyson,  16  Pet.  i  ;  Railroad  Co.  v.  National 
Bank,  102  U.  S.  14;  Burgess  v.  Scligman,  107  U.  S.  20,  33;  Smith 
V.  Alabama,  124  U.  S.  365,  478;  Bucher  v.  Cheshire  Railroad,  12$ 
U.  S.  555,  583.  The  decisions  of  the  State  courts  certainly  can- 
not be  allowed  any  greater  weight  in  the  Federal  courts  when  ex- 
ercising the  admiralty  and  maritime  jurisdiction  exclusively  vested 
in  them  by  the  Constitution  of  the  United  States. 

It  was  also  argued  in  behalf  of  the  appellant,  that  the  validity 
and  effect  of  this  contract,  to  be  performed  pricipally  upon  the 
high  seas,  should  be  governed  by  the  general  maritime  law,  and 
that  by  that  law  such  stipulations  are  valid.  To  this  argument 
there  are  two  answers. 

First.     There  is  not  shown  to  be  any  such  general  maritime 


CONTRACTS.  507 

law.  The  industry  of  the  learned  counsel  for  the  appellant  has 
collected  articles  of  codes,  decisions  of  courts  and  opinions  of 
commentators  in  France,  Italy,  Germany,  and  Holland,  tcndinj:^ 
CO  show  that,  by  the  law  administered  in  those  countries,  such  a 
stipulation  would  be  valid.  But  those  decisions  and  opinions  do 
not  appear  to  have  been  based  on  general  maritime  law,  but 
largely,  if  not  wholly,  upon  provisions  or  omissions  in  the  codes 
of  the  particular  country ;  and  it  has  been  said  by  many  jurists  that 
the  law  of  France,  at  least,  was  otherwise.  See  2  Pardessus  Droit 
Commercial,  no.  542 ;  4  Goujet  &  Meyer  Diet.  Droit  Commercial 
(2d  ed.)  Voiturier,  nos.  i,  8t  ;  2  Troplong  Droit  Civil,  nos.  894, 
910,  942,  and  other  books  cited  in  Peninsular  &  Oriental  Co.  v. 
SItand,  3  Moore  P.  C.  (N.  S.)  272,  278,  285,  28C>;  25  Laurent 
Droit  Civil  Frangais,  No.  532 ;  Mellish,  L.  J.,  in  Cohen  v.  South- 
eastern Roihvay.  2  Ex.  D.  253,  257. 

Second.  The  general  maritime  law  is  in  force  in  this  coun- 
try, or  in  any  other,  so  far  only  as  it  has  been  adopted  by  the  laws 
or  usages  thereof;  and  no  rule  of  the  general  maritime  law  (if 
any  exists)  concerning  the  validity  of  such  a  stipulation  as  that 
now  before  us  has  ever  been  adopted  in  the  United  States  or  in 
England,  or  recogni.red  in  the  admiralty  courts  of  either.  The 
Lottazvanna,  21  Wall.  558;  The  Scotland,  105  U.  S.  24,  29,  33; 
The  Belgenland,  114  U.  S.  355,  369;  The  Harrishurg,  119.  U.  S. 
199;  The  Hamburg,  2  Moore,  P.  C.  (N,  S.)  289,  319;  5".  C. 
Brown.  &  Lush.  253,  272;  Lloyd  v.  Guihert,  L.  R.  i  Q.  B.  115, 
123,  124;  S.  C.  6  B.  &  S  HX),  134,  T36;  The  Gaetano  &  Maria,  7 
P.  D.  137,  143. 

It  was  argued  in  this  court,  as  it  had  been  below,  that  as  the 
contract  was  to  be  chiefly  performed  on  board  of  a  British  vessel 
and  to  be  finally  completed  in  Great  Britain,  and  the  damage 
occurred  in  Great  Britain,  the  case  should  be  determined  by  the 
British  law,  and  that  by  that  law  the  clause  exempting  the  appel- 
lant from  liability  for  losses  occasioned  by  the  negligence  of  its 
servants  was  valid. 

The  Circuit  Court  declined  to  yield  to  this  argument,  upnn 
two  grounds:  ist.  That  as  the  answer  expressly  admitted  the 
jurisdiction  of  the  Circuit  Court  asserted  in  the  libel,  and  the  law 
of  Great  Britain  had  not  been  set  up  in  the  answer  nor  proved  as 
a  fact,  the  case  must  be  decided  according  to  the  law  of  the  Fed- 
eral courts,  as  a  question  of  general  commercial  law.  2d.  That 
there  was  nothing  in  the  contracts  of  affreightment  to  indicate  a 
contracting  in  view  of  any  other  law  than  the  recognized  law  of 


508  PRIVATE    INTERNATIONAL    LAW. 

such  forum  in  the  United  States  as  should  have  cognizance  of 
suits  on  the  contracts.     22  Blatchford,  397. 

The  law  of  Great  Britain,  since  the  Declaration  of  Independ- 
ence is  the  law  of  a  foreign  country,  and,  like  any  other  foreign 
law,  is  matter  of  fact,  which  the  courts  of  this  country  cannot  be 
presumed  to  be  acquainted  with,  or  to  have  judicial  knowledge 
of,  unless  it  is  pleaded  and  proved. 

The  rule  that  the  courts  of  one  country  cannot  take  cog- 
nizance of  the  law  of  another  without  plea  and  proof  has  been 
constantly  maintained,  at  law  and  in  equity,  in  England  and 
America.  Church  v.  Hnbhart,  2  Cranch,  187,  236;  Ennis  v. 
Smith,  14  How.  400,  426,  427;  Dainese  v.  Hale,  91  U.  S.  13,  20, 
21;  Pierce  v.  Indseth,  106  U.  S.  546;  Ex  parte  Cridland,  3  Ves. 
&  B.  94,  99;  Lloyd  V.  Giiibert,  L.  R.  i  Q.  B.  115,  129;  5.  C.  6  B. 
&  S.  100,  142.  In  the  last  case  cited,  Mr.  Justice  Willes,  deliv- 
ering judgment  in  the  Exchequer  Chamber,  said:  "In  order  to 
preclude  all  misapprehension,  it  may  be  well  to  add,  that  a  party 
who  relies  upon  a  right  or  an  exemption  by  foreign  law  is  bound 
to  bring  such  law  properly  before  the  court,  and  to  establish  it  in 
proof.  Otherwise  the  court,  not  being  entitled  to  notice  such 
law  without  judicial  proof,  must  proceed  according  to  the  law  of 
England." 

The  decision  in  Lamar  v.  Micon,  112  U.  S.  452,  and  114  U. 
S.  218,  did  not  in  ihe  least  qualify  this  rule,  but  only  applied  the 
settled  doctrine  that  the  Circuit  Courts  of  the  United  States,  and 
this  court  on  appeal  from  their  decisions,  take  judicial  notice  of 
the  laws  of  the  several  States  of  the  Union  as  domestic  laws ;  and 
it  has  since  been  adjudged,  in  accordance  with  the  general  rule 
as  to  foreign  law,  that  this  court,  upon  writ  of  error  to  the 
highest  court  of  a  State,  does  not  take  judicial  notice  of  the  law 
of  another  State,  not  proved  in  that  court  and  made  part  of  the 
record  sent  up,  unless  by  the  local  law  that  court  takes  judicial 
notice  of  it.  Hanley  v.  Donahue,  116  U.  S.  i  ;  Renaud  v.  Abbott, 
116  U.  S.  277,  285. 

The  rule  is  as  well  established  in  courts  of  admiralty  as  in 
courts  of  comm.on  law  or  courts  of  equity.  Chief  Justice  Mar- 
shall, delivering  judgment  in  the  earliest  admiralty  appeal  in 
vv'hich  he  took  part,  said:  "That  the  laws  of  a  foreign  nation, 
designed  only  for  the  direction  of  its  own  affairs,  are  not  to  be 
noticed  by  the  courts  of  other  countries,  unless  proved  as  facts, 
and  thai  this  court,  with  respect  to  facts,  is  limited  to  the  state- 
ment made  in  the  court  below,  cannot  be  questioned."     Talbot  v. 


CONTRACTS.  509 

Seeman,  i  Cranch,  i,  38.  And  in  a  recent  case  in  admiralty,  Mr. 
Justice  Bradley  said:  "If  a  collision  should  occur  in  liritish 
waters,  at  least  between  British  ships,  and  the  injured  party 
should  seek  relief  in  our  courts,  we  would  administer  justice 
according  to  the  British  law,  so  far  as  the  rights  and  liabilities  of 
the  parties  were  concerned,  provided  it  were  shown  what  that 
law  was.  If  not  shown,  we  would  apply  our  own  law  to  the  case. 
In  the  French  or  Dutch  tribunals  they  would  do  the  same." 
The  Scotland,  105  U.  .S.  24,  29. 

So  Sir  William  Scott,  in  the  High  Court  of  Admiralty,  said : 
"Upon  all  principles  of  common  jurisprudence,  foreign  law  is  al- 
ways to  be  proved  as  a  fact."  The  Louis.  2  Dodson,  210,  241. 
To  the  same  effect  are  the  judgments  of  the  Judicial  Committee 
of  the  Privy  Council  in  The  Prince  George,  4  Moore  P.  C.  21, 
and  The  Peerless,  13  Moore  P.  C.  484.  And  in  a  more  recent 
case,  cited  by  the  appellant.  Sir  Robert  Phillimore,  said:  ''I  have 
no  doubt  whatever  that  those  who  rely  upon  the  difference 
between  the  foreign  law  and  the  law  of  the  forum  in  which  the 
case  is  brought  are  bound  to  establish  that  difference  by  com- 
petent evidence."     The  Duero,  L.  R.  2  Ad.  &  Ec.  393,  397. 

It  was,  therefore,  rightly  held  by  the  Circuit  Court,  upon  the 
pleadings  and  proofs  upon  which  the  case  had  been  argued,  that 
the  question  whether  the  British  law  differed  from  our  own  was 
not  open. 

But  it  appears  by  the  supplemental  record,  certified  to  this 
court  in  obedience  to  a  writ  of  certiorari,  that  after  the  Circuit 
Court  had  delivered  its  opinion  and  filed  its  findings  of  fact  and 
conclusions  of  law,  and  before  the  entry  of  a  final  decree,  the 
appellant  moved  for  leave  to  amend  the  answer  by  averring  the 
existence  of  the  British  law  and  its  applicability  to  this  case,  and 
to  prove  that  law;  and  that  the  motion  was  denied  by  the  Circuit 
Court,  because  the  proposed  allegation  did  not  set  up  any  fact 
unknown  to  the  appellant  at  the  time  of  filing  the  original  answer, 
and  could  not  be  allowed  under  the  rules  of  that  court.  22 
Blatchford,  402-404. 

On  such  a  question  we  should  be  slow  to  overrule  a  decision 
of  the  Circuit  Court.  But  we  are  not  prepared  to  sav  that  if, 
upon  full  consideration,  justice  should  appear  to  require  it.  wo 
might  not  do  so,  and  order  the  case  to  be  remanded  to  that  court 
with  directions  to  allow  the  answer  to  be  amended  and  proof  of 
the  foreign  law  to  be  introduced.  The  sideline,  q  Cranch.  244, 
284;  The  Marianna  Flora,  11  Wheat,  i,  38;  The  Charles  Morgan, 


510  PRIVATE    INTERNATIONAL    LAW. 

115  U.  S.  69;  Merchants'  Ins.  Co.  v.  Allen,  121  U.  S.  67;  The 
Gazelle,  128  U.  S.  474.  And  the  question  of  the  effect  which  the 
law  of  Great  Britain,  if  duly  alleged  and  proved,  should  have 
upon  this  case  has  been  fuliy  and  ably  argued. 

Under  these  circumstances,  we  prefer  not  to  rest  our  judg- 
ment upon  technical  grounds  of  pleading  or  evidence,  but,  taking 
the  same  course  as  in  Merchants  Ins.  Co.  v.  Allen,  just  cited,  pro- 
ceed to  consider  the  question  of  the  effect  of  the  proof  offered,  if 
admitted. 

It  appears  by  the  cases  cited  in  behalf  of  the  appellant,  and  is 
hardly  denied  by  the  appellee,  that  under  the  existing  law  of 
Great  Britain,  as  declared  by  the  latest  decisions  of  her  courts, 
common  carriers,  by  land  or  sea,  except  so  far  as  they  are  con- 
trolled by  the  provisions  of  the  Railway  and  Canal  Traffic  Act  of 
1854,  are  permitted  to  exempt  themselves  by  express  contract 
from  responsibility  for  losses  occasioned  by  negligence  of  their 
servants.  The  Ducro,  L.  R.  2  Ad.  &  Ec.  393 ;  Tanhman  v.  Pacific 
Co.,  26  Law  Times  (N.  S.)  704;  Steel  v.  State  Line  Steamship 
Co.,  3  App.  Cas.  72 ;  Manchester  &c.  Raikvay  v.  Brozmt,  8  App. 
Gas.  703.  It  may  therefore  be  assumed  that  the  stipulation  now 
in  question,  though  invalid  by  our  law,  would  be  valid  according 
to  the  law  of  Great  Britain. 

The  general  rule  as  tc  what  law  should  prevail,  in  case  of  a 
conflict  ot  laws  concerning  a  private  contract,  was  concisely  and 
exactly  stated  before  the  Declaration  of  Independence  by  Lord 
Mansfield  (^as  reported  by  Sir  William  Blackstone,  who  had  been 
of  counsel  in  the  case)  as  follows:  "'The  general  rule,  established 
ex  comitate  et  jure  gentium,  is  that  the  place  where  the  contract 
is  made,  and  not  where  the  action  is  brought,  is  to  be  considered 
in  expounding  and  enforcing  the  contract.  But  this  rule  admits 
of  an  exception,  when  the  parties  (at  the  time  of  making  the  con- 
tract) had  a  view  to  a  different  kingdom."  Robinson  v.  Bland, 
1  W.  Bl.  234,  256,  258;  5.  C.  2  Bur.  1077,  1078- 

The  recent  decisions  by  eminent  English  judges,  cited  at  the 
bar,  so  clearly  affirm  and  so  strikingly  illustrate  the  rule,  as  ap- 
plied to  cases  more  or  less  resembling  the  case  before  us,  that  a 
full  statement  of  them  will  not  be  inappropriate. 

In  Peninsular  &  Oriental  Co.  v.  Shand,  3  Moore  P.  C.  (N. 
S.)  272,  290,  Lord  Justice  Turner,  delivering  judgment  in  the 
Privy  Council,  reversing  a  decision  of  the  Supreme  Court  of 
Mauritius,  said,  "The  general  rule  is  that  the  law  of  the  country 
where  a  contract  is  made  governs  as  to  the  nature,  the  obligation 


CONTRACTS.  511 

and  the  interpretation  of  it.  The  parties  to  a  contract  arc  cither 
the  subjects  of  the  ix)wer  there  ruhnJ,^  or  as  temporary  residents 
owe  it  a  temporary  allegiance;  in  either  case  equally,  they  must 
be  understood  to  submit  to  the  law  there  prevailing,  and  to  agree 
to  its  action  upon  their  contract.  It  is,  of  course,  immaterial 
that  such  agreement  is  not  expressed  in  terms;  it  is  equally  an 
agreement,  in  fact,  presumed  dc  jure,  and  a  foreign  court  inter- 
preting or  enforcing  it  on  any  contrary  rule  defeats  the  inten- 
tion of  the  parties,  as  well  as  neglects  to  observe  the  recognized 
comity  of  nations." 

It  was  accordingly  held,  that  the  law  of  England,  and  not 
the  French  law  in  force  at  Mauritius,  governed  the  validity  and 
construction  of  a  contract  made  in  an  English  port  between  an 
English  company  and  an  English  subject  to  carry  him  hence  by 
way  of  Alexandria  and  Suez  to  IMauritius,  and  containing  a 
stipulation  that  the  company  should  not  be  liable  for  loss  of  pas- 
sengers' baggage,  which  the  court  in  Mauritius  had  held  to  be 
invalid  by  the  French  law.     3  Moore  P.  C.  (N.  S.)  278. 

Lord  Justice  Turner  observed,  that  it  was  a  satisfaction  to 
find  rhat  the  Court  of  Cassation  in  France  had  pronounced  a 
judgment  lo  the  same  effect,  under  precisely  similar  circum- 
stances, in  the  case  of  a  French  officer  taking  passage  at  Hong 
Kong,  an  English  possession,  for  Marseilles  in  France,  under  a 
like  contract,  on  a  ship  of  the  same  company,  which  was  wrecked 
in  the  Red  Sea,  owing  to  the  negligence  of  her  master  and  crew. 
Jnlien  v.  Peninsular  &•  Oriental  C^.,  imperfectly  stated  in  3 
Moore  P.  C.  (N.  S.)  282,  note,  and  fully  reported  in  75  Journal 
du    Palais    (1864)    225. 

The  case  of  Lloyd  v.  Guibrrt,  6  B.  &  S.  100;  6".  C.  L.  R.  i. 
O  B.  115;  decided  in  the  Queen's  Bench  before,  and  in  the  Ex- 
chequer Chamber  after,  the  decision  in  the  Privy  Council  just 
referred  to,  presented  this  peculiar  state  of  facts :  A  French  ship 
owned  by  Frenchmen  was  chartered  by  the  master,  in  pursuance 
of  his  general  authority  as  such,  in  a  Danish  West  India  island, 
to  a  British  subject,  who  knew  her  to  be  French,  for  a  voyage 
from  St.  Marc  in  Hayti  to  Havre.  London  or  Liverpool,  at  the 
charterer's  option,  and  he  shipped  a  cargo  from  St.  Marc  to  Liver- 
pool. On  the  voyage,  the  ship  su.stained  damage  from  a  storm 
which  compelled  her  to  put  into  a  Portuguese  port.  There  the 
master  lawfully  borrowed  money  on  bottomry,  and  repaired  the 
ship,  and  she  carried  her  cargo  safe  to  Liverpool.  The  bondholder 
proceeded   in  an   English  Court  of  Adnnralty   against   the   ship. 


512  PRIVATE    INTERNATIONAL    LAW. 

freight  and  cargo,  which  being  insufificient  to  satisfy  the  bond, 
he  brought  an  action  at  law  to  recover  the  deficiency  against  the 
owners  of  the  ship ;  and  they  abandoned  the  ship  and  freight  in 
such  a  manner  as  by  the  French  law  absolved  them  from  liability. 
It  was  held  that  the  French  law  governed  the  case,  and  therefore 
the  plaintiff  could  not  recover. 

It  thus  appears  that  in  tliat  case  the  question  of  the  intent  of 
the  parties  was  complicated  with  that  of  the  lawful  authority  of 
the  master ;  and  the  decision  in  the  Queen's  Bench  was  put  wholly 
upon  the  ground  that  the  extent  of  his  authority  to  bind  the  ship, 
the  freight  or  the  owners  was  limited  by  the  law  of  the  home  port 
of  the  ship,  of  which  her  flag  was  sufficient  notice.  6  B.  &  S. 
lOO.  That  decision  was  in  accordance  with  an  earlier  one  of  Mr. 
Justice  Story,  in  Pope  v.  Nicker  son,  3  Story,  465 ;  as  well  as  with 
later  ones  in  the  Privy  Council,  on  appeal  from  the  High  Court 
of  Admiralty,  in  which  the  validity  of  a  bottomry  bond  has  been 
dcLermined  by  the  law  prevailing  at  the  home  port  of  the  ship,  and 
not  by  the  law  of  the  port  where  the  bond  was  given.  The  Kar- 
nak,  L.  R.  2  P.  C.  505,  512;  The  Goetano  &  Maria,  7  P.  D.  137. 
See  also  The  Woodland,  7  Benedict,  110,  118;  14  Blatchford,  499, 
503,  and  104  U.  S.  180. 

The  judgment  in  the  Exchequer  Chamber  in  Lloyd  v.  Gxii- 
ben  was  put  upon  somewhat  broader  ground.  Mr.  Justice  Willes, 
in  delivering  that  judgment,  said:  "It  is  generally  agreed  that 
the  law  of  the  place  where  the  contract  is  made  is  prima  facie  that 
which  the  parties  intended,  or  ought  to  be  presumed  to  have 
adopted  as  the  footing  upon  which  they  dealt,  and  that  such  law 
ought  therefore  to  prevail  in  the  absence  of  circumstances  indicat- 
ing a  different  intention,  as,  for  instance,  that  the  contract  is  to 
be  entirely  performed  elsewhere,  or  that  the  subject  matter  is 
immovable  property  situated  in  another  country,  and  so  forth ; 
which  latter,  though  sometimes  treated  as  distinct  rules,  appear 
more  properly  to  be  classed  as  exceptions  to  the  more  general  one, 
by  reason  of  the  circumstances  indicating  an  intention  to  be  bound 
b>  a  lavv  different  from  that  of  the  place  where  the  contract  is 
made;  which  intention  is  niferred  from  the  subject  matter  and 
from  the  surrounding  circumstances,  so  far  as  they  are  relevant 
to  construe  and  determine  the  character  of  the  contract."  L.  R. 
I  Q.  B.  122,  123;  6  B.  &  S.  133. 

It  was  accordingly  held,  conformably  to  the  judgment  in 
Peninsular  &  Oriental  Co.  v.  Shand,  above  cited,  that  the  law  of 
England,  as  the  law  of  the  place  of  final  performance  or  port  of 


CONTRACTS.  513 

discharge,  did  not  govern  the  case,  because  it  was  "manifest  that 
what  was  to  be  done  at  Liverpool  was  but  a  small  portion  of  the 
entire  service  to  be  rendered,  and  that  the  character  of  the  con- 
tract cannot  be  determined  thereby,"  although  as  to  the  mode  of 
delivery  the  usages  of  Liverpool  would  govern.  L.  K.  i  (J.  B. 
125,  126;  6  B.  &  S.  137.  It  was  then  observed  that  the  law  of 
Portugal,  in  force  where  the  bottomry  bond  was  given,  could  not 
affect  the  case;  that  the  law  of  llayti  had  not  been  mentioned  or 
relied  upon  in  argument ;  and  that  "in  favor  of  the  law  of  Den- 
mark, there  is  the  cardinal  fact  that  the  contract  was  made  in 
Danish  territory,  and  further,  that  the  first  act  done  towards  per- 
formance wa.s  weighing  anchor  in  a  Danish  port :"  and  it  was 
finally,  upon  a  view  of  all  the  circumstances  of  the  case,  decided 
that  the  law  of  France,  to  which  the  ship  and  her  owners  be- 
longed, must  govern  ihe  question  at  issue. 

The  decision  was,  in  substance,  that  the  presumption  that  the 
contract  should  be  governed  by  the  law  of  Denmark,  in  force 
where  it  was  made,  was  not  overcome  in  favor  of  the  law  of  Eng- 
land, by  the  fact  that  the  voyage  was  to  an  English  port  and  the 
charterer  an  Englishman,  nor  in  favor  of  the  law  of  Portugal  by 
the  fact  that  the  bottomry  bond  was  given  in  a  Portuguese  port ; 
but  that  the  ordinary  presumption  was  overcome  by  the  consid- 
eration that  French  owners  and  an  English  charterer,  making  a 
charter  party  in  the  French  language  of  a  French  ship,  m  a  port 
where  both  were  foreigners,  to  be  performed  partly  there  by 
weighing  anchor  for  the  port  of  loading.  ( a  place  where  l)oth 
parties  would  also  be  foreigners,)  partly  at  that  port  by  taking 
the  cargo  on  board,  principally  on  the  high  seas,  and  partly  by 
final  delivery  in  the  port  of  discharge,  nmst  have  intended  to  look 
to  the  law  of  Fiance  as  governing  the  question  of  the  liability  of 
the  owner  beyond  the  value  of  the  ship  and  freight. 

In  two  later  cases,  in  each  of  which  the  judgment  of  the 
Queen's  Bench  Division  was  affirmed  by  the  Court  of  Apjx^al,  the 
law  of  the  place  where  the  contract  was  made  was  held  to  gov- 
ern, iiothwithstandmg  some  of  the  facts  strongly  pointed  towards 
the  application  of  another  law ;  in  the  one  case,  to  the  law  of  the 
ship's  Hag;  and  in  the  other,  to  the  law  of  the  port  where  that 
part  of  the  contract  v,  as  to  i)e  performed,  for  the  nonperformance 
of  which  the  suir  was  brought. 

In  the  first  case,  a  bill  of  lading,  issued  in  England  in  the 
English  language  to  an  English  subject,  by  a  company  described 
therein  as  an   B.nglish  company  and   in    tact   registered  both   in 

33 


514  PRIVATE    INTERNATIONAL    LAW. 

England  and  in  Holland,  for  goods  shipped  at  Singapore,  an  Eng- 
lish port,  to  be  carried  to  a  port  in  Java,  a  Dutch  possession,  in  a 
vessel  with  a  Dutch  name,  registered  in  Holland,  commanded  by 
a  Dutch  master  and  carrying  the  Dutch  flag,  in  order  to  obtain 
the  privilege  of  trading  with  Java,  was  held  to  be  governed  by 
the  law  of  England,  and  not  by  that  of  Holland,  in  determining 
the  validitv  and  construction  of  a  clause  exempting  the  company 
from  liability  for  negligence  of  master  and  crew ;  and  Lords  Jus- 
tices Brett  and  Lindley  both  considered  it  immaterial  whether  the 
ship  was  regarded  as  English  or  Dutch.  Chartered  Bank  of  India 
V.  Netherlands  Steam  Navigation  Co.,  9  O.  B.  D.  118,  and 
10  g.  B.  D.  521,  529,  536,  540,  544. 

As  Lord  Justice  Lindley  observed :  "This  conclusion  is  not 
at  all  at  variance  with  Lloyd  v.  Gnihcrt,  but  rather  in  accordance 
with  it.  It  is  true  that  in  that  case  the  law  of  the  flag  prevailed ; 
but  the  intention  of  the  parties  was  admitted  to  be  the  crucial 
test ;  and  the  law  of  the  ship's  flag  was  considered  as  the  law  in- 
tended by  the  parties  to  govern  their  contract,  as  there  really  was 
no  other  law  which  they  could  reasonably  be  supposed  to  have 
contemplated.  The  plaintiff  there  was  English,  the  defendant 
French ;  the  lex  loci  contractus  was  Danish ;  the  ship  was  French ; 
her  master  was  French,  and  the  contract  was  in  the  French  lan- 
guage. The  voyage  was  from  Hayti  to  Liverpool.  The  facts 
here  are  entirely  different,  and  so  is  the  inference  to  be  deduced 
from  them.  The  lex  loci  contractus  was  here  English,  and  ought 
to  prevail  unless  there  is  some  good  ground  to  the  contrary.  So 
far  from  there  being  such  ground,  the  inference  is  very  strong 
-  that  the  parties  really  intended  to  contract  with  reference  to  Eng- 
lish law."     10  O.  B.  D.  540. 

In  the  remaining  English  case,  a  contract  made  in  London 
between  two  English  mercantile  houses,  by  which  one  agreed  to 
sell  to  the  other  20,000  tons  of  Algerian  esparto,  to  be  shipped  by 
a  French  company  at  an  Algerian  port  on  board  vessels  furnished 
by  the  purchasers  at  J^ondcn,  and  to  be  paid  for  by  them  in  Lon- 
don on  arrival,  was  held  to  be  an  English  contract,  governed  by 
English  law ;  notwithstanding  that  the  shipment  of  the  goods  in 
Algiers  had  htitn  prevented  Iw  vis  major,  which,  by  the  law  of 
France  in  force  there,  excused  the  seller  from  performing  the 
contract.    Jacobs  v.  Credit  Lyonnais,  12  Q.  B.  D.  589. 

The  result  was  reached  by  applying  the  general  rule,  ex- 
pressed by  Denman.  J.,  in  these  words :  "The  general  rule  is,  that 
where  a  contract  is  made  in  England  between  merchants  carrying 


CONTRACTS.  515 

on  business  here,  as  this  is,  but  to  be  performed  elsewhere,  the 
construction  of  the  contract,  and  ail  its  incidents,  are  to  be  gov- 
erned by  the  law  of  the  country  where  the  contract  is  made,  unless 
there  is  something  to  show  that  the  intention  of  the  parties  was 
that  the  law  of  the  country  where  the  contract  is  to  \ye  performed 
should  prevail ;"  and  summed  up  by  the  Court  of  Appeals,  consist- 
ing of  Jjrett,  M.  R.,  and  Bowen,  L.  J.,  as  follows:  "The  broad 
rule  is  that  the  law  of  a  country  where  a  contract  is  made  pre- 
sumably governs  the  nature,  the  obligation  and  the  interpretation 
of  it,  unless  the  contrary  appears  to  be  the  express  intention  of  the 
parties.''     12  Q.  B.  D.  596.  597,  600. 

This  court  has  not  heretofore  had  occasion  to  consider  by 
what  law  contracts  like  tho^e  now  before  us  should  be  expounded. 
But  it  has  often  aftirnied  and  acted  on  the  general  rule,  that  con- 
tracts are  to  be  governed,  as  to  their  nature,  their  validity  and 
their  interpretation,  by  the  law  of  the  place  where  they  were 
made,  unless  the  contracting  parties  clearly  appear  to  have  had 
some  other  law  in  view.  Cox  v.  United  States,  6  Pet.  172;  Scud- 
der  V.  Union  Bank,  91  U.  S.  406;  Pritchard  v.  Norton,  106  U.  S. 
124;  Lamar  v.  Micou,  114  U.  S.  21'^;  Watts  v.  Caniors,  115  U.  S. 

353>  362. 

The  opinion  in  Watts  v.  Camors,  just  cited,  may  require  a 
word  or  two  of  explanation.  It  was  there  contested  whether,  in 
a  charter  party  made  at  New  Orleans  between  an  English  owner 
and  an  American  charterer  of  an  English  ship  for  a  voyage  from 
New  Orleans  to  a  port  on  the  continent  of  Europe,  a  clause  regu- 
lating the  amount  payable  in  case  of  any  breach  of  the  contract 
was  to  be  considered  as  liquidating  the  damages,  or  as  a  penalty 
only.  Such  was  the  question  of  which  the  court  said  that  if  it 
depended  upon  the  intent  of  the  parries,  and  consequently  upon 
the  law  which  they  must  be  presumed  to  have  had  in  view,  they 
"must  be  presumed  to  look  to  the  general  maritime  law  of  the  two 
countries,  and  not  to  the  local  law  of  the  State  in  which  the  con- 
tract is  signed.*'  The  choice  there  was  not  between  the  Ameri- 
can law  and  the  English  law,  but  between  the  statutes  and  deci- 
sions of  the  State  of  Louisiana,  and  a  rule  of  the  maritime  law 
common  to  the  United  States  and  England. 

Some  reliance  was  placed  by  the  appellant  upon  the  follow- 
ing observations  of  Mr.  Justice  Story,  sitting  in  the  Circuit  Court: 

"If  a  contract  is  to  be  performed,  partly  in  one  country  and 
partly  in  another  country,  it  admits  of  a  d(>u])le  aspect,  nay,  it  nas 
a  double  operation,  and  is,  as  to  the  particular  parts,  to  be  inter- 


516  PRIVATE    INTERNATIONAL    LAW. 

preted  distinctively ;  that  is.  according  to  the  laws  of  the  country 
where  the  particular  parts  are  to  be  performed  or  executed.  This 
would  be  clearly  seen  in  the  case  of  a  bill  of  lading  of  goods,  de- 
liverable in  portions  or  parts  at  ports  in  different  countries.  In- 
deed, in  cases  of  contracts  of  affreightment  and  shipment,  it  must 
often  happen  that  the  contract  looks  to  dift'erent  portions  of  it  to 
be  performed  in  different  countries:  some  portions  at  the  home 
port,  some  at  the  foreign  port,  and  some  at  the  return  port." 
"The  goods  here  were  deliverable  in  Philadelphia;  and  what 
would  be  an  effectual  delivery  thereof,  in  the  sense  of  the  law, 
(v.'hich  is  sometimes  a  nice  question,)  would,  beyond  question, 
be  settled  by  the  law  of  Pennsylvania.  But  to  what  extent  the 
owners  of  the  schooner  are  liable  to  the  shippers  for  a  non-fulfil- 
ment of  a  contract  of  shipment  of  the  master — whether  they  in- 
cur an  absolute  or  a  limited  liability,  must  depend  upon  the  nature 
and  extent  of  the  authority  which  the  owners  gave  him,  and  this 
is  to  be  measured  by  the  law  of  Massachusetts,"  where  the  ship 
and  her  owners  belonged.    Pope  v.  Nickerson,  3  Story,  465,  484, 

485- 

But  in  that  case  the  last  point  stated  was  the  only  one  m 

judgment,  and  the  previous  remarks  evidently  had  regard  to  such 
distinct  obligations  included  in  the  contract  of  affreightment  as 
are  to  be  performed  in  a  particular  port — for  instance,  what  would 
be  an  effectual  delivery,  so  as  to  terminate  the  liability  of  the  car- 
rier, which,  m  the  absence  of  express  stipulation  on  that  subject, 
IS  ordinarily  governed  by  the  law  or  usage  of  the  port  of  dis- 
charge. Robertson  v.  Jackson,  2  C.  B.  412;  Lloyd  v.  Guihert,  L. 
-R.  I  Q.  B.  115,  126;  S.  C.  6  B.  &  S.  100,  137. 

In  Morgan  v.  Nnv  Orleans  &c.  Railroad,  2  Woods,  244,  a 
contract  made  in  New  York,  by  a  person  residing  there,  with  a 
railroad  corporation  having  its  principal  office  there  but  deriving 
its  powers  from  the  laws  of  other  states,  for  the  conveyance  of 
interests  in  railroads  and  steamboat  lines,  the  delivery  of  property 
and  the  building  of  a  railroad  in  those  states,  and  which,  there- 
fore, might  be  performed  partly  in  New  York,  and  must  be  per- 
formed partly  in  the  other  states,  was  held  by  Mr.  Justice  Brad- 
ley, so  far  as  concerned  the  right  of  one  party  to  have  the  con- 
tract rescinded  on  account  of  nonperformance  by  the  other  party, 
to  be  governed  by  the  law  of  New  York,  and  not  by  either  of  the 
diverse  laws  of  the  other  states  in  which  parts  of  the  contract 
were  to  be  performed. 

In  Hale  v.  Nciv  Jersey  Steam  Navigation  Co.,  15  Conn.  538, 


CONTRACTS.  517 

546,  goods  were  shipped  at  New  York  for  Providence  in  Rhode 
Island  or  Boston  in  Massachusetts,  on  a  steamlx^at  employed  in 
the  business  of  transportation  between  New  York  and  Provi- 
dence; and  an  exemption,  claimed  by  the  carrier  under  a  public 
notice,  was  disallowed  by  the  Supreme  Court  of  Connecticut,  be- 
cause by  the  then  law  of  New  York  the  liability  of  a  common  car- 
rier could  not  be  limited  by  such  a  notice.  Chief  Justice  Wil- 
liams, delivering  judgment,  said:  "The  question  is,  by  what  law 
is  this  contract  to  be  governed.  The  rule  ujx)n  that  subject  is 
well  settled,  and  has  been  often  recognized  by  this  court,  that  con- 
tracts are  to  be  construed  according  to  the  laws  of  the  state  where 
made,  unless  it  is  presumed  from  their  tenor  that  they  were  en- 
tered into  with  a  view  to  the  laws  of  some  other  state.  There  is  . 
nothing  in  this  case,  either  from  the  location  of  the  parties  or 
the  nature  of  the  contract,  which  shows  that  they  could  have  had 
any  other  law  in  view  than  that  of  the  place  where  it  was  made. 
Indeed,  as  the  goods  were  shipped  to  be  transported  to  Boston 
or  Providence,  there  would  be  the  most  entire  uncertainty  what 
was  to  be  the  law  of  the  case  if  any  other  rule  was  to  prevail.  We 
have,  therefore,  nc  doubt  that  the  law  of  New  York,  as  to  the 
duties  and  obligations  of  common  carriers,  is  to  be  the  law  of  the 
case."' 

In  Dyke  v.  Erie  Railivay,  45  N.  Y.  113,  117,  a  passenger 
travelling  upon  a  ticket  by  which  a  railroad  corporation,  estab- 
lished in  New  Y'ork,  and  whose  road  extended  from  one  place  to 
another  in  that  state,  passing  through  the  States  of  Pennsylvania 
and  New  Jersey  by  their  permission,  agreed  to  carry  him  from 
one  to  another  place  in  New  York,  was  injured  in  Pennsylvania, 
by  the  law  of  which  the  damages  hi  actions  against  railroads  for 
personal  injury  were  limited  to  $3000.  The  Court  of  Appeals  of 
New  York  held  that  the  law  of  Pennsylvania  had  no  application 
to  the  case;  and  Mr.  Justice  Allen,  delivering  the  opinion,  referred 
to  the  case  of  Peninsular  &  Oriental  Co.  v.  Shand,  before  cited, 
as  analogous  m  principle,  and  said :  "The  contract  was  single  and 
the  performance  one  continuous  act.  The  defendant  did  not  un- 
dertake for  one  specific  act  in  part  performance,  in  one  state,  and 
another  specific  and  distinct  act  in  another  of  the  states  named, 
as  to  which  the  parties  could  be  presumed  to  have  had  in  view 
the  laws  and  usages  of  distmct  places.  Whatever  was  done  in 
Pennsylvania  was  a  part  of  the  single  act  of  transportation  from 
Attica  or  Waverly,  in  the  State  of  New  York,  to  the  city  of  New 
York,  and  in  performance  of  an  obligation  assumed  and  under- 


518  PRIVATE    INTERNATIONAL    LAW. 

taken  in  this  state,  and  which  was  indivisible.  The  obligation 
was  created  here,  and  by  force  of  the  laws  of  this  state,  and  force 
and  effect  must  be  given  to  it  in  conformity  to  the  laws  of  New 
York.  The  performance  w'as  to  commence  in  New  York,  and 
to  be  fully  completed  in  the  same  state,  but  liable  to  breach,  par- 
tial or  entire,  in  the  States  of  Pennsylvania  and  New  Jersey, 
through  which  the  road  of  the  defendant  passed ;  but  whether  the 
contract  was  broken,  and  if  broken  the  consequences  of  the 
breach,  should  be  determined  by  the  laws  of  this  state.  It  can- 
not be  assumed  that  the  parties  intended  to  subject  the  contract 
to  the  laws  of  the  other  states,  or  that  their  rights  and  liabilities 
should  be  qualitied  or  varied  by  any  diversities  that  might  exist 
between  the  laws  of  those  states  and  the  lex  loci  contractus." 

In  McDaniel  v.  Chicago  &  Northzvestern  Railway,  24  Iowa, 
412,  417,  cattle  transported  by  a  railroad  company  from  a  place 
in  Iowa  to  a  place  in  Illinois,  under  a  special  contract  made  in 
Iowa,  containing  a  stipulation  that  the  company  should  be  ex- 
empt from  liability  for  any  damage,  unless  resulting  from  colli- 
sion or  derailing  of  trains,  were  injured  in  Illinois  by  the  negli- 
gence of  the  company's  servants ;  and  the  Supreme  Court  of  Iowa, 
Chief  Justice  Dillon  presiding,  held  the  case  to  be  governed  by 
the  law  of  Iowa,  which  permitted  no  common  carrier  to  exempt 
himself  from  the  liability  which  would  exist  in  the  absence  of 
the  contract.  The  court  said :  "The  contract  being  entire  and 
indivisible,  made  in  Iowa,  and  to  be  partly  performed  here,  it 
must,  as  to  its  validity,  nature,  obligation  and  interpretation,  be 
governed  by  our  law.  And  by  our  law,  so  far  as  it  seeks  to 
change  the  common  law,  it  is  wholly  nugatory  and  inoperative. 
The  rights  of  the  parties,  then,  are  to  be  determined  under  the 
common  law,  the  same  as  if  no  such  contract  had  been  made." 

So  in  Pennsylvania  Co.  v.  Fairchild,  69  Illinois,  260,  where 
a  railroad  company  received  in  Indiana  goods  consigned  to  Leav- 
enwotth.  in  Kansas,  and  carried  them  to  Chicago  in  Illinois,  and 
there  delivered  them  to  another  railroad  company,  m  whose  cus- 
tody thev  were  destroyed  by  fire,  the  Supreme  Court  of  Illinois 
held  that  the  case  must  be  governed  by  the  law  of  Indiana,  by 
which  tlie  first  company  was  not  liable  for  the  loss  of  the  goods 
after  they  passed  into  the  custody  of  the  next  carrier  in  the  line 
of  transit. 

The  other  cases  in  the  courts  of  the  several  states,  cited  at 
the  bar,  afford  no  certain  or  satisfactory  guide.  Two  cases,  held 
not  to  be  governed  by  a  statute  of  Pennsylvania  providing  that 


CONTRACTS.  519 

no  railroad  corporation  should  be  liable  for  a  loss  of  passenj^er's 
baggage  beyond  $300,  unless  the  excess  in  value  was  disclosed  and 
paid  for,  were  decided  (whether  rightly  or  not  we  need  not  con- 
sider) without  mucli  reference  to  authority,  and  upon  their 
peculiar  circumstances — the  one  case,  on  the  ground  that  a  con- 
tract by  a  New  Jersey  corporation  to  carry  a  passenger  and  his 
baggage  fron;  a  wharf  in  Philadelphia  across  the  Delaware  River, 
in  which  the  States  of  Pennsylvania  and  New  Jersey  had  equal 
rights  of  navigation  and  passage,  and  thence  through  the  State 
of  New  Jersey  to  Atlantic  City,  was  a  contract  to  be  performed 
in  New  Jersev  and  governed  by  the  law  of  that  state;  Brozmt  v. 
Camden  &  Atlantic  Railroad,  83  Penn.  St.  316;  and  the  other 
case,  on  the  ground  that  the  baggage,  received  at  a  town  in  Penn- 
sylvania to  be  carried  to  New  York  city,  having  been  lost  atter  its 
arrival  by  neghgence  on  the  part  of  the  railroad  company,  t!ie 
contract,  so  far  as  it  concerned  the  delivery,  was  to  be  governed  by 
the  law  of  New  York.  Curtis  v.  Delaware  &  Lackaivanna  Rail- 
road, 74  N.  Y.  116,  The  suggestion  in  Barter  v.  Wheeler,  49 
N.  H.  9,  29,  that  the  question,  whether  the  liability  of  a  railroad 
corporation  for  goods  transported  through  parts  of  two  states 
was  that  of  a  common  carrier  or  of  a  forwarder  only,  should  be 
governed  by  the  law  of  the  state  in  which  the  loss  happened,  was 
not  necessary  to  the  decision, and  appears  to  be  based  on  a  strained 
inference  from  the  observations  of  Mr.  Justice  Story  in  Pope  v. 
Nickerson,  above  cited.  In  a  later  case,  the  Supreme  Court  of 
New  Hampshire  reserved  an  expression  of  opinion  upon  a  like 
question.    Gray  v.  Jackson,  51  N.  H.  9,  39. 

This  review  of  the  principal  cases  demonstrates  that  accord- 
ing to  die  great  preponderance,  if  not  the  uniform  concurrence, 
of  authority,  the  general  rule,  that  the  nature,  the  obligation  and 
the  interpretation  of  a  contract  are  to  be  governed  bv  the  law  of 
the  place  where  it  is  made,  unless  the  parties  at  the  time  of  making 
it  have  some  other  law  in  view,  requires  a  contract  of  affreight- 
ment, made  in  one  country  between  citizens  or  residents  thereof, 
and  the  performance  of  which  begins  there,  to  be  governed  by 
the  law  of  that  country,  unless  the  iiartics.  when  entering  into  the 
contract,  clearl}  manifest  a  nuitual  inteniiun  that  it  shall  be  gov- 
erned by  the  law  of  some  other  country. 

There  does  not  appear  to  us  to  be  anything  in  either  of  the 
bills  of  lading  iii  the  present  case,  tending  to  show  that  the  con- 
tracting parties  looked  to  the  law  of  Pngland,  or  to  any  other  law 
than  that  of  the  place  where  the  contract  was  made. 


520  PRIVATE    INTERNATIONAL    LAW. 

The  bill  of  lading  for  the  bacon  and  hams  was  made  and 
dated  at  New  York,  and  signed  by  the  ship's  agent  there.  It  ac- 
knowledges that  the  goods  have  been  shipped  "in  and  upon  the 
steamship  called  Montana,  now  lying  in  the  port  of  New  York 
and  bound  for  the  port  of  Liverpool,"  and  are  to  be  delivered  at 
Liverpool.  It  contains  no  indication  that  the  owners  of  the  steam- 
ship are  English,  or  that  their  principal  place  of  business  is  in 
England,  rather  than  in  this  country.  On  the  contrary,  the  only 
description  of  the  iine  of  steamships,  or  of  the  place  of  business 
of  their  owners,  is  in  a  memorandum  in  the  margin,  as  follows : 
"Guion  Line.  United  States  Mail  Steamers.  New  York:  29 
Broadway.  I-iverpool :  ii  Rumford  St."  No  distinction  is  made 
between  the  places  of  business  at  New  York  and  at  Liverpool, 
except  that  the  former  is  named  first.  The  reservation  of  liberty, 
in  case  of  an  interruption  of  the  voyage,  "to  tranship  the  goods 
by  any  other  steamer,"  would  permit  transhipment  into  a  vessel 
of  any  other  line,  English  or  American.  And  general  average  is 
to  be  computed,  not  by  any  local  law  or  usage,  but  "according  to 
York-Antwerp  rules,"  which  are  the  rules  drawn  up  in  1864  at 
York  in  England,  and  adopted  in  1877  at  Antwerp  in  Belgium, 
at  international  conferences  of  representatives  of  the  more  im- 
portant mercantile  associations  of  the  United  States,  as  well  as 
of  the  maritime  countries  of  Europe.  Lowndes  on  General  Aver- 
age (3d  ed.)  Appendix  Q. 

The  contract  being  made  at  New  York,  the  ship-owner  hav- 
ing a  place  of  business  there,  and  the  shipper  being  an  American, 
-both  parties  must  be  presumed  to  have  submitted  themselves  to 
the  law  there  prevailing,  and  to  have  agreed  to  its  action  upon 
their  contract.  The  contract  is  a  single  one,  and  its  principal  ob- 
ject, the  transportation  of  the  goods,  is  one  continuous  act,  to  be- 
gin in  the  port  of  New  York,  to  be  chiefly  performed  on  the  high 
seas,  and  to  end  at  the  port  of  Liverpool.  The  facts  that  the 
goods  are  to  be  delivered  at  Liverpool,  and  the  freight  and  pri- 
mage, therefore,  payable  there  in  sterling  currency,  do  not  make 
the  contract  an  English  contract,  or  refer  to  the  English  law  the 
question  of  the  liability  of  the  carrier  for  the  negligence  of  the 
master  and  crew  in  the  course  of  the  voyage.  Peninsular  & 
Oriental  Co.  v.  Shand,  Lloyd  v.  Guibert,  and  Chartered  Bank  of 
India  v.  Netherlands  Steam  Navigation  Co.,  before  cited. 

There  is  even  less  ground  for  holding  the  three  bills  of  lading 
of  the  cotton  to  be  English  contracts.  Each  of  them  is  made  and 
dated  at  Nashville,  an  inland  city,  and  is  a  through  bill  of  lading. 


CONTRACTS.  521 

over  the  Louisville  and  Nashville  Railroad  and  its  connections, 
and  by  the  Williams  and  Guion  Steamship  Company,  from  N'ash- 
vilie  to  Liverpool ;  and  the  whole  freight  from  Nashville  to  Liver- 
pool is  to  be  "at  the  rate  of  fifty-four  pence  sterling  per  lOO  lbs. 
gross  weight."  It  is  stipulated  that  the  liability  of  the  Louisville 
and  Nashville  Railroad  and  its  connections  as  common  carriers 
"terminates  on  delivery  of  the  goods  or  property  to  the  steamship 
company  at  New  York,  when  the  liability  of  the  steamship  com- 
mences, and  not  before ;"  and  that  "the  property  shall  be  trans- 
ported from  the  port  of  New  York  to  the  port  of  Liverp>ool  by  the 
said  steamship  company,  with  liberty  to  ship  by  any  other  steam- 
ship or  steamship  line."  And  in  the  margin  is  this  significant  ref- 
erence to  a  provision  of  the  statute  of  the  United  States,  applica- 
ble to  the  ocean  transportation  only:  "Attention  of  shippers 
IS  cwLLAD  TO  THE  ACT  OF  CONGRESS  OF  1851  :  'Any  person  or  per- 
sions  shipping  oil  of  vitrol,  unslacked  lime,  inflammable  matches 
[or]  gunpowder,  in  a  ship  or  vessel  taking  cargo  for  divers  per- 
sons on  freight,  without  delivering  at  the  time  of  shipment  a  note 
in  writing,  expressing  the  nature  and  character  of  such  merchan- 
dise, to  the  master,  mate  or  officer,  or  person  in  charge  of  the  load- 
ing of  the  ship  or  vessel,  shall  forfeit  to  the  United  States  One 
Thousand  Dollars.'"  Act  of  March  3,  185 1,  c.  43,  §7;  9  Stat. 
636 ;  Rev.  Stat.  §  4288. 

It  was  argued  that  as  each  bill  of  lading,  drawn  up  and 
signed  by  the  carrier  and  assented  to  by  the  shipper,  contained  a 
stipulation  that  the  carrier  should  not  be  liable  for  losses  by  perils 
of  the  sea  arising  from  the  negligence  of  its  servants,  both  parties 
must  be  presumed  to  have  intended  to  be  bound  by  that  stipula- 
tion, and  must  therefore,  the  stipulation  being  void  by  our  law 
and  valid  by  the  law  of  England,  have  intended  that  their  contract 
should  be  governed  by  the  English  law  ;  and  one  passage  in  the 
judgment  in  Peninsular  &  Oriental  Co.  v.  Shand  gives  some  color 
to  the  argument.  3  Moore  P.  C.  (N.  S.)  291.  But  the  facts  of 
the  two  cases  are  quite  different  in  this  respect.  In  that  case, 
effect  was  given  to  the  law  of  England,  where  the  contract  was 
made;  and  IxDth  parties  were  English,  and  must  be  held  to  have 
known  the  law  (jf  their  own  country.  In  this  case,  the  contract 
was  made  in  this  country,  between  parties  one  residing  ami  the 
other  doing  business  here;  and  the  law  of  England  is  a  foreign 
law,  which  the  American  shipper  is  not  presumed  to  know.  Both 
parties  or  either  of  them  may  have  supposed  the  stipulation  to  be 
valid ;  or  both  or  either  mav  have  known  that  bv  our  law.  as  de- 


522  PRIVATE    INTERNATIONAL    LAW. 

clared  by  this  court,  it  was  void.  In  either  aspect,  there  is  no 
ground  for  inferring  that  the  shipper,  at  least,  had  any  intention, 
for  the  purpose  of  securing  its  validity,  to  be  governed  by  a  for- 
eign law,  which  lie  is  not  shown,  and  cannot  be  presumed,  to  have 
had  any  knowledge  of. 

Our  conclusion  on  the  principal  question  in  the  case  may  be 
summed  up  thus :  Each  of  the  bills  of  lading  is  an  American  and 
not  an  English  contract,  and,  so  far  as  concerns  the  obligation  to 
carry  the  goods  in  safety,  is  to  be  governed  by  the  American  law, 
and  not  by  the  law,  municipal  or  maritime,  of  any  other  country. 
By  our  law,  as  declared  by  this  court,  the  stipulation  by  which  the 
appellant  undertook  to  exempt  itself  from  liability  for  the  negli- 
gence of  its  servants  is  contrary  to  public  policy  and  therefore 
void ;  and  the  loss  of  the  goods  was  a  breach  of  the  contract,  for 
which  the  shipper  might  maintain  a  suit  against  the  carrier.  This 
being  so,  the  fact  that  the  place  where  the  vessel  went  ashore,  in 
consequence  of  the  negligence  of  the  master  and  officers  in  the 
prosecution  of  the  voyage,  was  upon  the  coast  of  Great  Britain, 
is  quite  immaterial. 

This  conclusion  is  in  accordance  with  the  decision  of  Judge 
Brown  in  the  District  Court  o^  the  United  States  for  the  South- 
ern District  of  New  York  in  The  Brant  ford  City,  29  Fed.  Rep. 
373.  which  appears  tO'  us  to  proceed  upon  more  satisfactory 
grounds  than  the  opposing  decision  of  Mr.  Justice  Chitty,  sitting 
alone  in  the  Chancery  Division,  made  since  this  case  was  argued, 
and,  so  far  as  we  are  informed,  not  reported  in  the  Law  Reports, 
.nor  affirmed  or  considered  by  any  of  the  higher  courts  of  Great 
Britain.     In  ^e  Missouri  Steamship  Co.,  58  Law  Times  (N.  S.) 

377- 

The  present  case  does  not  rec[uire  us  to  determine  what  effect 
the  courts  of  the  United  States  should  give  to  this  contract,  if  it 
had  expressly  provided  that  any  question  arising  under  it  should 
be  governed  by  the  law  of  England. 

The  question  of  the  subrogation  of  the  libellant  to  the  rights 
of  the  shippers  againsi  the  carrier  presents  no  serious  difficulty. 

From  the  very  nature  of  the  contract  of  insurance  as  a  con- 
tract of  indemnity,  the  insurer,  upon  paying  to  the  assured  the 
amount  of  a  loss,  total  or  partial,  of  the  goods  insured,  becomes, 
without  any  formal  assignment,  or  any  express  stipulation  to  that 
effect  in  the  policy,  subrogated  in  a  corresponding  amount  to  the 
assured's  rigiit  of  action  against  the  carrier  or  other  person  re- 
sponsible for  the  loss ;  and  in  a  court  of  admiralty  may  assert  in 


CONTRACTS.  523 

his  own  name  that  ri.^ht  of  the  shipper.  The  Potomac,  105  U.  S. 
630,  634;  Phoenix  Ins.  Co.  v.  Erie  Transportation  Co.,  117  U.  S. 
312,  321. 

In  the  present  case,  the  hbellant,  before  the  fihng  of  the  hhel, 
paid  to  each  of  the  shippers  the  greater  part  of  his  insurance,  and 
thereby  became  entitled  tc  recover  so  much,  at  least,  from  the  car- 
rier. The  rest  of  the  insurance  m.oney  was  jxiul  by  the  libellant 
before  the  argument  m  the  District  Court,  and  that  amount  might 
have  been  claimed  by  amendment,  if  not  under  the  original  libel. 
The  Charles  Morgan^  115  U.  S.  69.  75:  The  Gazelle,  128  U.  S. 
474.  The  question  of  the  right  of  the  libellant  to  recover  to  the 
whole  extent  of  the  insurance  so  paid  was  litigated  and  included 
in  the  decree  in  the  District  Court,  and  in  the  Circuit  Court  on 
appeal ;  and  no  objection  was  made  in  either  of  those  courts,  or 
at  the  argument  in  this  court,  to  any  insufficiency  of  the  libel  in 
this  particular. 

The  appellant  does,  however,  object  that  the  decree  should 
not  include  the  amount  of  the  loss  on  the  cotton  shipped  under 
through  bills  of  lading  from  Nashville  to  Liverpool.  This  objec- 
tion is  grounded  on  a  clause  in  those  bills  of  lading,  which  is  not 
found  in  the  bill  of  lading  of  the  bacon  and  hams  shipped  at  New 
York;  and  oti  the  ajudication  in  Phoenix  Ins.  Co.  v.  Erie  Trans- 
portaiion  Co.,  117  U.  S.  312,  that  a  stipulation  in  a  bill  of  lading, 
that  a  carrier,  w  hen  liable  for  a  loss  of  the  goods,  shall  have  the 
benefit  of  any  insurance  that  may  have  been  effected  upon  them, 
is  valid  as  between  the  carrier  and  the  shipper,  and  therefore  limits 
the  right  of  an  insurer  of  the  goods,  upon  paying  to  the  shipper 
the  amount  of  a  loss  by  stranding,  occasioned  by  the  negligence 
of  the  carrier's  servants,  to  recover  over  against  the  carrier. 

But  I'c  behooves  a  carrier  setting  up  such  a  defence  to  show 
clearly  that  the  insurance  on  the  goods  is  one  which  by  the  terms 
of  his  contract  he  is  entitled  to  the  benefit  of.  Inuian  v.  South 
Carolina  Railzvay,  ante,  12S.  The  through  bills  of  lading  of  the 
cotton  are  signed  by  an  agent  of  the  railroad  companies  and  the 
steamship  company,  "severallv.  but  not  jointly,"  and  contain,  in 
separate  columns,  two  entirely  distinct  sets  of  "terms  and  condi- 
tions," the  first  relating  exclusively  to  the  land  carriage  by  the 
railroads  and  their  connections,  and  the  second  to  the  ocean  trans- 
portation by  the  steamship.  The  clause  relied  on,  providing  that 
in  case  of  any  loss  or  damage  of  the  goods,  whereby  any  legal 
liability  shall  be  incurred,  that  company  only  shall  be  held  answer- 
able in  whose  actual  custody  the  goods  are  at  the  time,  and  the 


524  PRIVATE    INTERNATIONAL    LAW. 

carrier  so  liable  shall  have  the  full  benefit  of  any  insurance  that 
may  have  been  effected  upon  or  on  account  of  said  goods,"  is  in- 
serted in  the  midst  of  the  terms  and  conditions  defining  the  lia- 
bility of  the  railroad  companies,  and  is  omitted  in  those  defining 
the  liability  of  the  steamship  company,  plainly  signifying  an  in- 
tention that  this  clause  should  not  apply  to  the  latter.  It  is  quite 
clear,  therefore,  that  the  appellant  has  no  right  to  claim  the  benefit 
of  any  insurance  on  the  goods.  See  Railroad  Co.  v.  Androscog- 
gin Mills,  22  Wall.  594,  602. 

The  result  of  these  considerations  is  that  the  decree  of  the 
Circuit  Court  is  in  all  respects  correct  and  must  be 

AMrmed. 

BURNETT  V.  PA.  RY.  CO.,  1896. 

[176  Pa.  St.  45-] 

Opinion  by  Mr  Jitstice  Fell,  May  28,  1896: 
The  refusal  of  the  court  to  charge  that  "as  the  contract  for 
transportation  was  made  in  New  Jersey  it  will  be  enforced  in  this 
state  as  in  that,  and  as  the  defendant  was  released  from  respon- 
sibility by  the  free  pass  the  verdict  must  be  for  the  defendant," 
raises  the  only  question  to  be  considered.  The  plaintiff  was 
employed  by  the  defendant  as  a  flagman  at  Trenton,  N.  J.  He 
applied  for  and  was  granted  free  transportation  for  himself,  his 
wife  and  daughter  to  Elmira.  N.  Y.  He  received  two  passes — 
one  from  Trenton  to  Philadelphia,  the  terms  of  which  do  not 
appear  in  evidence ;  the  other  an  employee's  trip  pass  from  Phila- 
delphia to  Elmira,  by  the  terms  of  which  he  assumed  all  risks  of 
accident.  He  was  injured  at  Harrisburg,  Pa.,  through  the 
admitted  negligence  of  the  defendant's  employees. 

It  was  proved  at  the  trial  that  under  the  laws  of  New  Jersey 
the  contract  by  which  the  plaintiff  in  consideration  of  free  trans- 
portation assumed  the  risk  of  accident  was  valid,  and  that  in  that 
state  he  could  not  recover;  and  it  is  conceded  that  in  Pennsyl- 
vania the  decisions  are  otherwise,  and  that  such  a  contract  will 
not  relieve  a  common  carrier  from  responsibility  for  negligence: 
Goldey  v.  Penna.  R.  R.  Co.,  30  Pa.  242;  Penna.  R.  R.  Co.  v. 
Henderson,  51  Pa.  315:  Penna.  R.  R.  Co.  v.  Butler,  57  Pa.  335; 
Buffalo,  Pittsburg  &  Western  R.  R.  Co.  v.  O'Hara,  12  W.  N.  C. 
473.  The  question  then  is:  By  the  laws  of  which  state  is  the 
responsibility  of  the  defendant  to  be  determined? 

The  defendant  is  a  corporation  of  the  state  of  Pennsylvania. 
The  injury  occurred  in  the  operation  of  its   road  in  this  state. 


CONTRACTS.  525 

The  passes,  although  issued  and  deHvered  in  New  Jersey,  were 
for  transportation  from  the  station  in  Trenton  directly  across 
the  Delaware  river  into  this  state.  The  service  was  to  be  ren- 
dered here:  this  was  the  place  of  performance. 

Generally  as  to  its  formalities  and  its  interpretation,  obli- 
gation and  effect,  a  contract  is  governed  by  the  laws  of  the  place 
where  it  is  made,  and  if  it  is  valid  there  it  is  valid  everywhere : 
but  when  it  is  made  in  one  state  or  country  to  be  performed  in 
another  state  or  country  its  validity  and  effect  are  to  be  deter- 
mined by  the  laws  of  the  place  of  performance.  It  is  to  be  pre- 
sumed that  parties  enter  into  a  contract  with  reference  to  the  laws 
of  the  place  of  performance,  and  unless  it  appears  that  the  inten- 
tion was  otherwise  those  laws  determine  the  mode  of  fulfillment 
and  obligation  and  the  measure  of  liability  for  its  breach :  Daniel 
on  Negotiable  Instruments,  658;  Byles  on  Bills,  586;  2  Kent's 
Commentaries,  620;  Wharton  on  the  Conflict  of  Laws,  sec.  401; 
Story  on  the  Conflict  of  Laws,  sec.  280;  Scudder  v.  Union 
National  Bank,  91  U.  S.  406;  Brown  v.  C.  &  A.  R.  R.  Co.,  83  Pa. 
316;  Waverly  Bank  v.  Hall,  T50  Pa.  466.  The  decision  in 
Brown  v.  C.  &  A.  R.  R.  Co.  (supra)  seems  to  be  conclusive  of 
this  case.  In  that  case  a  ticket  was  issued  in  Philadelphia  by  a 
New  Jersey  corporation  operating  a  railroad  in  that  state,  and 
the  plaintiff's  trunk  was  delivered  to  the  defendant  in  Phila- 
delphia, and  it  did  not  appear  where  it  had  been  lost.  The  liability 
being  admitted,  the  question  was  whether  the  laws  of  Pennsyl- 
vania limiting  the  amount  of  liability  applied.  It  was  held  that 
as  the  service  was  to  be  rendered  by  a  New  Jersey  corporation  in 
New  Jersey  the  laws  of  the  place  of  performance  controlled.  It 
was  said  in  the  opinion  by  Sharswood,  J. :  "The  negligence  of 
which  the  defendants  are  presumed  to  have  been  guiltv  was  in 
the  course  of  the  exercise  of  their  franchises  as  a  New  Jersey 
corporation,  and  the  extent  of  their  liability  is  therefore  to  be 
determined  bv  the  laws  of  that  state." 

The  judgment  is  affirmed. 


CHAPTER  XV. 

TORTS. 

MACHADO   V.  PONTES,   1897. 
[2  L.  R.  Q.  B.  D.  231.] 

Appeal  from  Kennedy,  J.,  at  chambers. 

The  plaintiff  brought  this  action  to  recover  damages  from  the 
defendant  for  an  alleged  libel  upon  the  plaintiff  contained  in  a 
pamphlet  in  the  Portugese  language  alleged  to  have  been  pub- 
lished by  the  defendant  in  Brazil. 

The  defendant  delivered  a  statement  of  defence  (in  which, 
amongst  other  defences,  he  denied  the  alleged  libel),  and  he  after- 
vrards  took  out  a  summons  for  leave  to  amend  his  defence  by 
adding  the  following  plea:  "Further  the  defendant  will  contend 
that  if  (contrary  to  the  defendant's  contention)  the  said  pamphlet 
has  been  published  m  Brazil,  by  the  Brazilian  law  the  publication 
of  the  said  pamphlet  in  Brazil  cannot  be  the  ground  of  legal  pro- 
ceedings against  the  defendant  in  Brazil  in  which  damages  can  be 
recovered,  or  (alternatively)  cannot  be  the  ground  of  legal  pro- 
ceedings against  the  defendant  in  Brazil  in  which  the  plaintiff 
can  recover  general  damages  for  any  injury  to  his  credit,  char- 
acter, or  feelings." 

The  summons  came  before  Kennedy,  J.,  in  chambers,  who 
alUnved  the  plea  to  be  added,  but  expressed  some  doubt  as  to  the 
propriety  of  so  doing,  and  gave  leave  to  plaintiff  to  bring  the 
present  appeal. 

Lopes,  L.  J.  I  am  of  opinion  that  this  appeal  ought  to  be 
allowed.  [The  Lord  Justice  then  referred  to  the  facts,  and,  after 
reading  the  plea,  continued:] 

Now  that  plea,  as  it  stands,  appears  to  me  merely  to  go  to 
the  remedy.  It  says,  in  effect,  that  in  this  case  no  action  in  which 
damages  could  be  recovered  would  lie  in  Brazil,  and,  assuming 
that  any  damages  could  be  recovered  in  Brazil,  they  would  be 
special  damages  only.  Mr.  Walton  contends  that  that  is  not  the 
meaning  of  the  plea ;  that  the  plea  is  intended  to  raise  a  larger 
question  than  that,  and  to  say  that  libel  cannot  be  made  the  sub- 
ject of  any  civil  proceedings  at  all  in  Brazil,  but  is  only  the  sub- 
ject-matter of  crinunal  proceedings ;  and,  for  the  purposes  of 
what  I  am  about  to  say,  I  will  assume  that  to  be  so. 


TORTS.  527 

Now  the  principle  applicable  in  the  present  case  appears  to 
me  to  be  this :  where  the  words  have  been  published  outside  the 
jurisdiction,  then,  in  order  to  maintain  an  action  here  on  the 
ground  of  a  tort  committed  outside  the  jurisdiction,  the  act  com- 
plained of  must  be  wrongful — I  use  the  word  "wrongful"  de- 
liberately— both  by  the  law  of  this  country  and  also  by  the  law 
of  the  country  where  it  was  committed ;  and  the  first  thing  we 
have  to  consider  is  whether  those  conditions  are  complied  with. 

In  the  case  of  Phillips  :-.  Eyre.  L.  R.  6  Q.  B.  i,  Willes,  J., 
lays  down  very  distinctly  what  the  requisites  are  in  order  to  found 
such  an  action.  He  says  this  (at  p.  28)  :  "As  a  general  rule,  in 
order  to  found  a  suit  m  England  for  a  wrong  alleged  to  have  been 
committed  abroad,  t-vo  conditions  must  be  fulfilled :  First,  the 
wrong  must  be  of  such  a  character  that  it  would  have  been  action- 
able if  committed  in  England.  .  .  .  Secondly,  the  act  must  not 
have  been  justifiable  by  the  law  of  the  place  where  it  was  done." 
Then  in  The  M.  Moxliam,  i  P.  D.  107,  James,  L.  J.,  in  the  course 
of  his  judgment,  uses  these  words  (at  p.  iii)  :  "It  is  settled  that 
if  by  the  law  of  the  foreign  country  the  act  is  lawful  or  is  excus- 
able, or  even  if  ;t  has  been  legitimized  by  a  subsequent  act  of  the 
Legislature,  then  this  court  will  take  into  consideration  that  state 
of  the  law, — that  is  to  say,  if  by  the  law  of  the  foreign  country  a 
particular  person  is  justified,  or  is  excused,  or  has  been  justified 
or  excused  for  the  thing  done,  he  will  not  be  answerable  liere." 

Both  those  cases  seem  to  me  to  go  this  length :  that,  in  order 
to  constitute  a  good  defence  to  an  action  brought  in  this  country 
in  respect  of  an  act  done  in  a  foreign  country,  the  act  relied  on 
must  be  one  which  is  innocent  in  the  country  where  it  was  com- 
mitted. In  the  present  case  there  can  be  no  doubt  that 
the  action  lies,  for  it  complies  with  both  of  the  requirements 
which  are  laid  down  by  Willes,  J.  The  act  was  committed 
abroad,  and  was  actionable  here,  and  not  justifiable  by  the  law  of 
the  place  where  it  was  committed.  Both  those  conditions  are 
complied  with  ;  and,  therefore,  the  publication  in  Brazil  is  action- 
able here. 

It  then  follows,  directlv,  the  right  of  action  is  established  in 
this  country,  that  the  ordinary  incidents  of  that  action  and  the 
appropriate    remedies   ensue. 

Therefore,  in  this  case,  in  my  opinion,  damages  would  flow 
from  the  wrong  committed  just  as  they  would  in  any  action 
brought  in  respect  of  a  libel  published  in  this  country. 

It  is  contended  that  it  would  be  much  better  that  this  ([ues- 


528  PRIVATE    INTERNATIONAL    LAW. 

1  ion  should  not  be  decided  at  the  present  time,  but  that  a  commis- 
sion should  go  to  Brazil,  and  that  the  Brazilian  law  should  be 
inquired  into.  If  our  view  is  correct,  it  seems  to  me  that  that 
would  be  a  great  waste  of  time  and  money,  because,  having  regard 
to  the  authorities  I  have  mentioned,  this  plea  is  absolutely  bad, 
and  ought  to  be  struck  out. 

RiGBY,  L.  J.  I  am  of  the  same  opinion.  I  do  not  propose  to 
decide  this  case  on  any  technical  consideration  as  to  what  may  be 
the  precise  meaning  of  the  allegation  that  is  proposed  to  be  intro- 
duced into  the  defence ;  I  give  it  the  widest  possible  construction 
it  can  reasonably  bear;  and  I  will  assume  it  to  involve  that  no 
action  for  damages,  or  even  no  civil  action  at  all,  can  be  main- 
tained in  Brazil  in  respect  of  a  libel  published  there.  But  it  does 
not  follow  from  that  that  the  libel  is  not  actionable  in  this  country 
under  the  present  conditions,  and  having  regard  to  the  fact  that 
the  plaintiff  and  defendant  are  here. 

Willes,  J.,  in  Phillips,  ?'.  Eyre,  was  laying  down  a  rule  which 
he  expressed  without  the  slightest  modification,  and  without  the 
slightest  doubt  as  to  its  correctness ;  and  when  you  consider  the 
care  with  which  the  learned  judge  prepared  the  propositions  that 
he  was  about  to  enunciate,  I  cannot  doubt  that  the  change  from 
"actionable"  in  the  first  branch  of  the  rule  to  "justifiable"  in  the 
second  branch  of  it  was  deliberate.  The  first  requisite  is  that  the 
wrong  must  be  of  such  a  character  that  it  would  be  actionable  in 
England.  It  was  long  ago  settled  that  an  action  will  lie  by  a 
plaintiff  here  against  a  defendant  here,  upon  a  transaction  in  a 
place  outside  this  country.  But  though  such  action  may  be 
brought  here,  it  does  not  follow  that  it  will  succeed  here,  for, 
when  it  is  committed  in  a  foreign  country,  it  may  turn  out  to  be  a 
perfectly  innocent  act  according  to  the  law  of  that  country ;  and 
if  the  act  is  shown  by  the  law  of  that  country  to  be  an  innocent 
act,  we  pay  such  respect  to  the  law  of  other  countries  that  we 
will  not  allow  an  action  to  be  brought  upon  it  here.  The  inno- 
cency  of  the  act  in  the  foreign  country  is  an  answer  to  the  action. 
That  is  what  is  meant  when  it  is  said  that  the  act  must  be  "justi- 
fiable" by  the  law  of  the  place  where  it  was  done. 

It  is  not  really  a  matter  of  any  importance  what  the  nature 
of  the  remedy  for  a  wrong  in  a  foreign  country  may  be. 

The  remedy  must  be  according  to  the  law  of  the  country 
which  entertains  the  action.  Of  course,  the  plea  means  that  no 
action  can  be  brought  in  this  country  in  respect  of  the  libel  (if 
any)  in  BraziL     But  I  think  the  rule  is  clear.     It  was  very  care- 


TORTS.  529 

fully  laid  down  by  Willes,  J.,  in  Phillips  v.  Eyre;  and  in  the  case 
of  The  M.  Moxham,  all  the  learned  judges  of  the  Court  of 
Appeal  in  their  judgments  laid  down  the  law  without  hesitation 
and  in  a  uniform  manner:  and  first  one  judge  and  then  another 
gave,  in  different  language  but  exactly  to  the  same  purport  and 
effect,  the  rule  enunciated  by  Willes,  J.  So  that  if  authority 
were  wanting  there  is  a  decision  clearly  binding  upon  us,  although 
1  think  the  principle  is  sufficient  to  decide  the  case. 

I  think  there  is  no  doubt  at  all  that  an  action  for  a  libel  pub- 
lished abroad  is  maintainable  here,  unless  it  can  be  shown  to  be 
justified  or  excused  in  the  country  w^here  it  was  published, 
lames,  L.  J.,  states,  in  The  M.  Moxham,  what  the  settled  law  is. 
A'lellish,  L.  J.,  is  quite  as  clear  upon  that  point  as  James,  L.  J.,  in 
laving  down  the  general  rule;  and  Baggallay,  L.  J.,  also  takes 
the  same  view.  We  start,  then,  from  this :  that  the  act  in  ques- 
tion is  prima  facie  actionable  here,  and  the  only  thing  we  have  to 
do  is  to  see  whether  there  is  any  peremptory  bar  to  our  juris- 
diction arising  from  the  fact  that  the  act  w^e  are  dealing  with  is 
authorized,  or  innocent  or  excusable,  in  the  country  where  it  was 
committed.  If  we  cannot  see  that,  we  must  act  according  to  our 
own  rules  in  the  damages  (if  any)  wdiich  we  may  choose  to  give. 
Here  we  cannot  see  it,  and  this  appeal  must  be  allowed  with  costs. 

Appeal  allowed. 

DENNICK  V.  RY.  CO.,   1880. 

[103  U.  S.  II.] 

Error  to  the  Circuit  Court  of  the  United  States  for  the 
Northern  District  of  New  York. 

Miller,  J.  It  is  understood  that  the  decision  of  the  court 
below  rested  solely  upon  the  proposition  that  the  liability  in  a 
civil  action  for  damages  which,  under  the  statute  of  New  Jersey,  is 
imposed  upon  a  party,  by  whose  wrongful  act,  neglect,  or  default 
death  ensues,  can  be  enforced  by  no  one  but  an  administrator, 
or  other  personal  representative  of  the  deceased,  appointed  bv  the 
authority  of  that  State.  And  the  soundness  or  unsoundness  of 
this  proposition  is  what  we  are  called  upon  to  decide. 

It  must  be  taken  as  established  by  the  record  that  the  acci- 
dent by  which  the  plaintiff's  husband  came  to  his  death  occurred 
in  New  Jersey,  under  circumstances  which  brought  the  defend- 
ant within  the  provisions  of  the  first  section  of  the  act  making  the 
company  liable  for  damages,  notwithstanding  the  death. 

It  can  scarcely  be  contended  that  the  act  belongs  to  the  class 
34 


530  PRIVATE    INTERNATIONAL    LAW. 

of  criminal  laws  which  can  only  be  enforced  by  the  courts  of  the 
State  wliere  the  offence  was  committed,  for  it  is,  though  a  statu- 
tory remedy,  a  civil  action  to  recover  damages  for  a  civil  injury. 

It  is  indeed  a  right  dependent  solely  on  the  statute  of  the 
State ;  but  when  the  act  is  done  for  which  the  law  says  the  person 
shall  be  liable,  and  the  action  by  which  the  remedy  is  to  be 
enforced  is  a  personal  and  not  a  real  action,  and  is  of  that  char- 
acter which  the  law  recognizes  as  transitory  and  not  local,  we 
cannot  see  why  the  defendant  may  not  be  held  liable  in  any  court 
to  whose  jurisdiction  he  can  be  subjected  by  personal  process  or 
by  voluntary  appearance,  as  was  the  case  here. 
.  It  is  diifficuh  to  undestand  how  the  nature  of  the  remedy,  or 
the  jurisdiction  of  the  courts  to  enforce  it,  is  in  any  manner 
dependent  on  the  question  whether  it  is  a  statutory  right  or  a 
common  law  riglit. 

Wherever,  by  either  the  common  law  or  the  statute  law  of  a 
State,  a  right  of  action  has  become  fixed  and  a  legal  liability  in- 
curred, that  liability  may  be  enforced  and  the  right  of  action 
pursued  in  any  court  which  has  jurisdiction  of  such  matters  and 
can  obtain  jurisdiction  of  the  parties. 

The  action  in  the  present  case  is  in  the  nature  of  trespass  to 
the  person,  always  held  to  be  transitory,  and  the  venue  immaterial. 
The  local  court  in  New  York  and  the  Circuit  Court  of  the  United 
States  for  the  Northern  District  were  competent  to  try  such  a 
case  when  the  parties  v/ere  properly  before  it.  Mostyn  z'.  Fabri- 
gas,  I  Cowp.  r6i;  Rafael  v.  Verelst,  2  W.  Bl.  983,  1055: 
McKenna  z'.  Fisk,  i  How.  241.  We  do  not  see  how  the  fact  that 
■  it  was  a  statutory  right  can  vary  the  principle.  A  party  legally 
liable  in  New  Jersey  cannot  escape  that  liability  by  going  to  New 
York.  If  the  liability  to  pay  money  was  fixed  by  the  law  of  the 
State  where  the  transaction  occurred,  is  it  to  be  said  it  can  be 
enforced  nowhere  else  because  it  depended  upon  statute  law  and 
not  upon  common  law?  It  would  be  a  very  dangerous  doctrine 
to  establish  that  in  all  cases  where  the  several  States  have  substi- 
tuted the  statute  for  the  common  law,  the  liability  can  be  enforced 
in  no  other  State  but  that  where  the  statute  was  enacted  and  the 
transaction  occurred.  The  common  law  never  prevailed  in  Lou- 
isiana, and  the  rights  and  remedies  of  her  citizens  depend  upon 
her  civil  code.  Can  these  rights  be  enforced  or  the  wrongs  of 
her  citizens  be  redressed  in  no  other  State  of  the  Union?  The 
contrary  has  been  held  in  many  cases.  See  Ex  parte  Van  Riper, 
20  Wend.  (K.  V.)  614;  Lowry  r.  Inman,  46  N.  Y.  119;  Picker- 


TORTS.  531 

ing  V.  Fisk,  6  Vt.  102;  Railroad  v.  Sprayberry,  8  Bax.   (Tenn.) 
341  ;  Great  Western  Railway  Co.  v.  Miller,  19  Mich.  305. 

But  it  is  said  that,  conceding  that  the  statute  of  the  State  of 
New  Jersey  established  the  liability  of  the  defendant  and  gave  a 
remedy,  the  right  of  action  is  limited  to  a.  personal  representative 
appointed  in  that  State  and  amenable  to  its  jurisdiction. 

The  statute  does  not  say  this  in  terms :  "Every  such  action 
shall  be  brought  by  and  in  the  names  of  the  personal  represen- 
tatives of  such  deceased  person."  It  may  be  admitted  that  for 
the  purpose  of  this  case  the  words  "personal  representatives" 
mean  the  administrator. 

The  plaintiff  is,  then,  the  only  personal  representative  of  the 
deceased  in  existence,  and  the  construction  thus  given  the  statute 
is,  that  such  a  suit  shall  not  be  brought  by  her.  This  is  in  direct 
contradiction  of  the  words  of  the  statute.  The  advocates  of  this 
view  interpolate  into  the  statute  what  is  not  there,  by  holding 
that  the  personal  representative  must  be  one  residing  in  the  State 
or  appointed  by  its  authority.  The  statute  says  the  amount 
recovered  shall  be  for  the  exclusive  benefit  of  the  widow  and 
next  of  kin.  Why  not  add  here,  also,  by  construction,  "if  they 
reside  in  the  State  of  New  Jersey"? 

It  is  obvious  that  nothing  in  the  language  of  the  statute 
requires  such  a  construction.  Indeed,  by  inference,  it  is  opposed 
to  it.  Tlie  first  section  makes  the  liability  of  the  corporation  or 
person  absolute  where  the  death  arises  from  their  negligence. 
Who  shall  say  that  it  depends  on  the  appointment  of  an  adminis- 
trator within  the  State? 

The  second  section  relates  to  the  remedy,  and  declares  who 
shall  receive  the  damages  when  recovered.  These  are  the  widow 
and  next  of  kin.  Thus  far  the  statute  declares  under  what  cir- 
cimistances  a  defendant  shall  be  liable  for  damages,  and  to  whom 
they  shall  be  paid.  In  this  there  is  no  ambiguity.  But  fearing 
that  there  might  be  a  question  as  to  the  proper  person  to  sue.  the 
act  removes  any  doubt  by  designating  the  personal  represen- 
tative. The  plaintiff  here  is  that  representative.  Why  can  she 
not  sustain  the  action?  Let  it  be  remembered  that  this  is  not  a 
case  of  an  administrator,  appointed  in  one  State,  suing  in  that 
character  in  the  courts  of  another  State,  without  any  authority 
from  the  latter.     It  is  the  general  rue  that  this  cannot  be  done. 

The  suit  here  was  brought  by  the  administratrix  in  a  court 
of  the  State  which  had  appointed  her.  and  of  course  no  such 
objection  cnnld  be  made 


532  PRIVATE    INTERNATIONAL    LAW, 

If,  then,  the  defendant  was  liable  to  be  sued  in  the  courts  of 
the  State  of  New  York  on  this  cause  of  action,  and  the  suit  could 
only  be  brought  by  such  personal  representative  of  the  deceased, 
and  if  the  plaintiff  is  the  personal  representative,  whom  the  courts 
of  that  State  are  bound  to  recognize,  on  what  principle  can  her 
right  to  maintain  the  action  be  denied. 

So  far  as  any  reason  has  been  given  for  such  a  proposition, 
it  seems  to  be  this :  that  the  foreign  administrator  is  not  respon- 
sible to  the  courts  of  New  Jersey,  and  cannot  be  compelled  to  dis- 
tribute the  amount  received  in  accordance  with  the  New  Jersey 
statute. 

But  the  courts  of  New  York  are  as  capable  of  enforcing  the 
rights  of  the  widow  and  next  of  kin  as  the  courts  of  New  Jersey. 
And  as  the  court  which  renders  the  judgment  for  damages  in 
favor  of  the  administratrix  can  only  do  so  by  virtue  of  the  New 
Jersey  statute,  so  any  court  having  control  of  her  can  compel 
distribution  of  the  amount  received  in  the  manner  prescribed  by 
that  statute. 

Again :  it  is  said  that,  by  virtue  of  her  appointment  in  New 
York,  the  administratrix  can  only  act  upon  or  administer  that 
which  was  of  the  estate  of  the  deceased  in  his  lifetime.  There 
can  be  no  doubt  that  much  that  comes  to  the  hands  of  administra- 
tors or  executors  must  go  directly  to  heirs  or  devisees,  and  is  not 
subject  to  sale  or  distribution  in  any  other  mode,  such  as  specific 
property  devised  to  individuals,  or  the  amount  which  by  the  legis- 
lation of  most  of  the  States  is  set  apart  to  the  family  of  the  de- 
ceased, all  of  which  can  be  enforced  in  the  courts ;  and  no  reason 
is  perceived  why  the  specific  direction  of  the  law  on  this  subject 
may  not  invest  the  administrator  with  the  right  to  receive  or 
recover  by  suit,  and  impose  on  him  the  duty  of  distributing  under 
that  law.  There  can  be  no  doubt  that  an  administrator,  clothed 
with  the  apparent  right  to  receive  or  recover  by  suit  property  or 
money,  may  be  compelled  to  deliver  or  pay  it  over  to  some  one 
who  establishes  a  better  right  thereto,  or  that  what  he  so  recovers 
is  held  in  trust  for  some  one  not  claiming  under  him  or  under  the 
will.  And  so  here.  The  statute  of  New  Jersey  says  the  personal 
representative  shall  recover,  and  the  recovery  shall  be  for  the 
benefit  of  the  widow  and  next  of  kin.  It  would  be  a  reproach  to 
the  laws  of  New  York  to  say  that  when  the  money  recovered  in 
such  an  action  as  this  came  to  the  hands  of  the  administratrix,  her 
courts  could  not  compel  distribution  as  the  law  directs. 

It  is  to  be  said,  however,  that  a  statute  of  New  York,  just  like 


TORTS.  533 

the  New  Jersey  law,  provides  for  bringing  the  action  by  the  per- 
sonal representative,  and  for  distribution  to  the  same  parties,  and 
that  an  administrator  appointed  under  the  law  of  that  State 
would  be  held  to  have  recovered  to  the  same  uses,  and  subject  to 
the  remedies  in  his  fiduciary  character  which  both  statutes  pre- 
scribe. 

We  are  aware  that  Woodward  v.  Michigan  Southern  & 
Northern  Indiana  Railroad  Co.  (lo  Ohio  St.  121)  asserts  a  dif- 
ferent doctrine,  and  that  it  has  been  followed  by  Richardson  v. 
New  York  Central  Railroad  Co.,  98  Mass.  85,  and  McCarthy  v. 
Chicago,  Rock  Island,  &  Pacific  Railroad  Co.,  18  Kan.  46.  The 
reasons  which  support  that  view  we  have  endeavored  to  show  are 
not  sound.  These  cases  are  opposed  by  the  latest  decision  on  the 
subject  in  the  Court  of  Appeals  of  New  York,  in  the  case  of 
Leonard,  Administrator,  v.  The  Columbia  Steam  Navigation  Co., 
not  yet  reported,  but  of  which  we  have  been  furnished  with  a  cer- 
tified copy. 

The  right  to  recover  for  an  injury  to  the  person,  resulting  in 
death,  is  of  very  recent  origin,  and  depends  wholly  upon  statutes 
of  the  different  States.  The  questions  growing  out  of  these  stat- 
utes are  new,  and  many  of  them  unsettled.  Each  State  court 
will  construe  its  own  statute  on  the  subject,  and  differences  are  to 
be  expected.  In  the  absence  of  any  controlling  authority  or  gen- 
eral concurrence  of  decision,  this  court  must  decide  for  itself  the 
question  now  for  the  first  time  presented  to  it,  and  with  every 
respect  for  the  courts  which  have  held  otherwise,  we  think  that 
sound  principle  clearly  authorizes  the  administrator  in  cases  like 
this  to  maintain  the  action. 

Judgment  reversed  zvith  directions  to  award  a  new  trial. 


DAVIS  V.   NEW   YORK  RY.,    1887. 
[143  Mass.  301.] 

Devens,  J.  The  defendant  is  a  railroad  corporation,  operat- 
ing a  railroad  through  Massachusetts  and  Connecticut,  as  a  con- 
tinuous line,  by  virtue  of  the  St.  of  1873,  c.  289,  and  exists  as  a 
corporation  by  the  laws  of  each  of  these  States.  This  action  is 
brought  by  the  plaintiff,  as  administrator  of  the  estate  of  Mrs. 
Ruth  L.  Brown,  for  alleged  injury  to  her,  which  finally  resulted 
in  her  death,  by  reason  of  the  carelessness  of  the  defendant  and 
that  of  its  servants,  while  she  was  being  conveyed  as  a  passenger 


534  PRIVATE    INTERNATIONAL    LAW. 

over  its  railroad  in  Connecticut,  the  intestate  being  herself  at  the 
time  in  the  exercise  of  due  care. 

The  law  of  the  State  of  Connecticut  has  been  properly  deter- 
mined as  a  fact  by  the  judge  presiding  at  the  trial,  and  his  finding 
in  regard  to  it  is  conclusive.  Ames  v.  McCamber,  124  Mass.  85, 
91.  From  this  it  appears  "that,  by  the  common  law  in  Connecti- 
cut, an  action  for  personal  injuries  does  not  survive  to  the  admin- 
instrator  of  the  person  injured  ;  that  there  is  no  statute  or  law  in 
Connecticut  by  virtue  of  which  a  common  law  action  for  personal 
injuries  is  revived,  or  made  to  survive  to  an  administrator  of  the 
person  injured."  The  facts,  as  they  are  alleged,  "do  not  consti- 
tute a  cause  of  action  under  the  laws  of  the  State  of  Connecticut 
by  the  administrator  in  behalf  of  the  intestate's  estate,  and  this 
action  could  not  be  maintained  in  that  State,  if  duly  brought  by 
an  administrator  there."  The  administrator  may  there  maintain, 
upon  these  facts,  a  special  action,  penal  in  its  nature,  created  by 
the  statutes  of  Connecticut,  by  which  the  damages  recoverable 
are  limited  to  not  more  than  $5000,  and  under  which  the  damages 
recovered  do  not  become  assets  of  the  estate,  but  are  recovered  in 
behalf  of  certain  persons  not  thus  entitled  to  the  same  according 
to  the  laws  of  distribution,  and  are  to  be  paid  over  in  specified 
proportions  to  them. 

The  plaintiff  does  not  contend  that  he  may  maintain  this  ac- 
tion as  the  special  one  provided  by  the  statute  of  Connecticut,  nor 
under  the  laws  of  that  .State.  Richardson  v.  New  York  Central 
Railroad,  98  Mass.  85.  We  are  aware  that  the  correctness  of  this 
decision  has  been  called  in  question  by  the  Supreme  Court  of  the 
United  States  in  Dcnnick  v.  Railroad,  103  U.  S.  11;  but  it  is 
unnecessary  to  reconsider  our  own  decision,  as  the  plaintiff  seeks 
only  to  maintain  his  acrion  under  our  statute,  which  provides 
that,  in  case  of  damage  to  the  person,  the  action  shall  survive,  and 
may  thus  be  prosecuted  by  an  administrator.  Pub.  Sts.  c.  165, 
§  I.  Hollenbcck  v.  Berkshire  Railroad,  9  Cush.  478.  The  in- 
quiry is  therefore  presented,  whether  a  cause  of  action  at  com- 
mon law,  which  dies  with  the  person  in  the  State  where  it 
accrued,  not  having  been  made  there  to  survive  by  any  statute, 
will  survive  under  and  by  virtue  of  the  statutes  of  survivorship 
of  another  state,  so  that,  if  jurisdiction  is  there  obtained  over  the 
person  or  property  of  the  defendant,  judgment  may  properly  be 
rendered  against  him  or  his  property.  That  our  statute  would 
furnish  a  remedy,  where  the  cause  of  action  was  one  recognized 
by  the  law  of  this  State  as  the  foundation  of  an  action  at  common 


TORTS.  535 

law,  although  it  accrued  without  the  State,  it  being  there  recog- 
nized as  existing,  and  not  discharged  or  extinguished,  will  be 
conceded. 

It  must  certainly  be  the  right  of  each  State  to  determine  by 
its  laws  under  what  circumstances  an  injury  to  the  person  will 
afford  a  cause  of  action.  If  this  is  not  so,  a  person  who  is  not  a 
citizen  of  the  State,  or  who  resorts  to  another  State  for  his 
remedy,  if  jurisdiction  can  be  obtained,  may  subject  the  defend- 
ant in  an  action  of  tort  to  entirely  different  rules  and  liabilities 
from  those  which  would  control  the  controversy  were  it  carried 
on  where  the  injury  occurred ;  and,  as  by  the  law  of  Massachu- 
setts it  is  required  that  a  person  injured  while  travelling  upon  a 
railroad  must  prove,  not  only  the  negligence  of  the  defendanc, 
but  also  that  he  himself  was  m  the  exercise  of  due  care,  and  as 
jurisdiction  may  be  obtained  by  an  attachment  of  property  of  the 
defendant  in  another  State,  the  plaintiff  might  relieve  himself  of 
the  necessity  of  proving  his  own  due  care,  if,  by  the  law  of  the 
State  to  which  he  may  resort,  such  proof  is  not  required,  and  thus 
put  upon  the  railroad  company  a  higher  res]X)nsibility  than  is  im- 
posed by  the  State  in  which  it  was  performing  its  business.  In 
a  similar  way,  if  a  traveller  upon  a  steam  or  horse  railroad  could 
not  recover  in  this  State  for  an  injury  done  by  carelessness  in 
transporting  him,  because  he  was  travelling  upon  Sunday,  in  vio- 
lation of  the  laws  of  the  State,  he  might,  unless  the  law  pre- 
scribed in  this  State  is  to  govern,  recover  in  any  State  where  laws 
forbidding  travelling  on  Sunday  did  not  exist,  if  jurisdiction 
could  there  be  obtained  over  the  defendant  or  its  property.  Where 
an  injury  occurs  in  another  State,  which  would  be  the  foundation 
of  an  action  at  common  law,  and  it  is  known  that  the  general  law 
of  that  state  is  the  common  law,  it  mav  be  inferred  that  the  tran- 
saction  is  governed  by  its  rules  as  here  applied,  in  the  absence  of 
evidence  to  the  contrary ;  but,  when  it  is  shown  to  be  otherwise, 
the  law  of  the  State  where  the  injury  occurs  is  to  be  regarded. 
It  is  a  general  principle,  that,  in  order  to  maintain  an  action  of 
tort  founded  upon  an  injury  to  person  and  property,  the  act 
which  is  the  cause  of  the  injury  and  the  foundation  of  the  action 
must  at  least  be  actionable  by  the  law  of  the  place  where  it  is 
done,  if  not  also  by  that  of  the  place  in  which  redress  is  sought. 
Le  Forest  v.  Tolman,  117  Mass.  109,  and  cases  cited.  It  must 
be  for  the  State  of  Connecticut  to  prescribe  when,  and  under 
what  circinnstances,  a  cause  of  action  shall  arise  against  a  corjwr- 
ation  wiiich  operates  a  railway  within  its  limits,  by  reason  of  an 


536  PRIVATE     INTERNATIONAL    LAW. 

act  done  by  it.  It  may  provide  that,  for  an  injury  done  by  its 
carelessness,  there  shall  be  no  cause  of  action  on  behalf  of  the 
injured  party,  but  punishment  by  indictment  only,  or  it  may  give 
to  such  injured  person  a  cause  of  action,  and  for  the  same  injury 
make  the  corporation  responsible,  by  indictment  or  other  pro- 
ceeding, for  a  fine  or  damages  which  shall  go  to  the  State,  to  rela- 
tives of  the  injured  party,  or  to  any  other  persons  named.  Com- 
monwealth  v.  Metropolitan  Railroad,  107  Mass.  236. 

The  intestate  did,  by  the  common  law  of  Connecticut,  have  a 
right  of  action  during  her  lifetime,  but  for  this  has  been  substi- 
tuted in  that  State,  she  having  deceased,  the  penal  action  created 
by  the  statute. 

It  is  the  contention  of  the  plaintiff,  that  the  cause  of  action 
may  be  held  to  survive  by  virtue  of  our  statute,  notwithstanding 
no  cause  of  action  now  exists  in  Connecticut.  Pub.  Sts.  c.  165,  §  i. 
That  the  special  action  in  Connecticut  can  now  be  maintained  is 
not  controverted.  If,  therefore,  this  contention  of  the  plaintiff  is 
correct,  the  defendant  continues  liable  for  its  act  or  neglect  in 
Connecticut  by  the  law  of  Massachusetts,  while  it  is  also  liable 
by  reason  of  the  penalty  imposed  upon  it  by  the  law  of  Connecti- 
cut as  a  substitute  for  its  original  liability,  such  penalty  being  still 
capable  of  enforcement.  The  design  of  our  statutes  of  survivor- 
ship is  primarily  to  provide  for  survival  of  those  actions  of  tort 
rhe  causes  of  which  occur  in  this  State.  If  similar  statutes 
existed  in  another  State,  where  the  original  cause  of  action 
accrued,  it  would  not  be  difficult  to  hold  that  our  own  applied  to 
such  causes,  upon  the  same  principle  by  which  we  hold  that  the 
intestate  herself  might  originally  have  brought  her  action  here. 
When  no  such  cause  of  action  now  exists  in  the  State  where  the 
injury  occurred,  it  is  not  easy  to  see  how  it  can  exist  here, 
especially  when,  in  such  State,  another  cause  of  action,  growing 
out  of  the  same  facts,  has  been  substituted  for  it.  This  would  be 
to  subject  the  defendant  to  two  liabilities,  one  existing  by  the  law 
of  the  State  in  which  jurisdiction  over  person  or  property  was 
obtained,  but  in  which  the  accident  did  not  occur;  and  the  other 
imposed  by  the  law  of  the  State  where  it  did  occur,  and  where  the 
defendant  had  its  residence;  while  in  cither  State  the  liability 
there  imposed  would  be  the  only  one  to  which  the  defendant  could 
by  its  law  be  subjected. 

It  may  be  suggested  that  the  law  of  Connecticut,  in  failing  to 
provide  that  an  action  for  a  personal  injury  shall  survive  to  the 
administrator,  has,  negatively,  only  the  same  effect  as  a  statute 


TORTS.  537 

of  limitations,  which  operates  merely  to  take  away  the  remedy 
of  a  plaintiff,  while  his  cause  of  action  still  exists. 

By  the  ancient  common  law,  as  it  existed  before  the  St.  of 
4  Edw.  III.  c.  7,  which  was  adopted  and  practised  on  in  this 
State  before  the  Constitution.  6  Dane  Abr.  607,  no  action  ex 
delicto  survived  to  the  personal  representative,  the  maxim  Actio 
personalis  nioritur  cum  persona  being  of  universal  application. 
Wilbur  v.  Gilmore,  21  Pick.  250.  Subsequently  to  that  statute, 
which  was  liberally  construed,  an  action  for  a  tort,  by  which  the 
personal  property  of  one  was  injured  or  destroyed,  survived  to 
his  administrator,  such  tort  being  an  injury  to  the  property  which 
otherwise  would  have  descended  to  him.  But  the  theory  that  a 
personal  injury  to  an  individual  was  limited  to  him  only,  that  no 
one  else  suffered  thereby,  and  that  therefore  by  his  decease  the 
cause  of  action  itself  ceased  to  exist,  continued. 

While  the  action  for  personal  injury  is  spoken  of  as  surviving, 
as  there  previously  was  no  responsibility  to  the  estate,  the  statute 
creates  a  new  cause  of  action.  It  imposes  a  new  liability,  and 
does  not  merely  remove  a  bar  to  a  remedy  such  as  is  interposed 
by  the  statute  of  limitations,  wdiich,  if  withdrawn  by  the  repeal 
of  the  statute,  woitld  allow  an  action  to  be  maintained  for  the 
original  cause.  What  the  new^  liability  shall  be,  by  what  condi- 
tions it  shall  be  controlled,  and  whether  the  original  liability  shall 
be  destroyed,  must  be  determined  by  the  law  of  the  State  where 
the  injury  occurs,  unless  the  legislation  of  other  States  is  to  have 
extra-territorial  force,  and  govern  transactions  beyond  their  limits. 
We  perceive  no  intention  to  invest  it  with  such  force,  even  if  it 
were  possible  so  to  do. 

By  the  decease  of  the  intestate,  the  cause  of  action  at  common 
law  w'hich  she  once  had  in  Connecticut  has  there  ceased  to  exist. 
It  is  for  that  State  to  determine  what  provision,  by  action  or  in- 
dictment, if  any,  shall  be  made  in  order  to  indemnify  the  estate 
of  the  intestate,  or  her  relatives,  or  to  punish  the  party  causing 
the  injury  to  her.  Our  statute,  permitting  the  survival  of  similar 
actions  in  this  State,  does  not  therefore  apply. 

The  question  considered  in  the  case  at  bar  was  fully  and  ably 
discussed  in  Necdham  v.  Grand  Trunk  Railzvay,  38  Vt.  294.  and 
the  same  result  reached  as  that  at  which  we  have  arrived.  To 
the  same  effect  also  is  State  v.  Pittsburgh  &  Conncllsvxlle  Rail- 
road, 45  Md.  41. 

The  plaintiff*,  in  his  argument,  attaches  importance  to  the 
St.  of  1873,  c.  289,  bv  virtue  of  which  the  defendant's  railroad 


538  PRIVATE    INTERNATIONAL    LAW. 

is  operated  in  the  several  States  through  which  it  runs  as  a  con- 
tinuous line;  but  the  fact  that  it  is  a  corporation  by  the  law  of 
Massachusetts  as  well  as  by  that  of  Connecticut  cannot  make  its 
liabilities  different  or  greater  in  this  State  on  account  of  trans- 
actions occurring  entirely  in  Connecticut;  nor  are  the  rights  of 
the  plaintiff'  greater  because  his  intestate,  who  was  injured  in  this 
transaction,  was  a  citizen  of  this  Commonwealth.  Whitford  v. 
Panama  Railroad,  23  N.  Y.  465,  472.  Richardson  v.  Neiv  York 
Central  Railroad,  iihi  supra: 

The  ruling  that  the  action  could  be  maintained  was  therefore 
erroneous.  Exceptions  sustained. 

HIGGINS  V.  CENTRAL  RY.,   1892. 

[155  Mass.  176.] 

Tort,  by  the  administrator  of  the  estate  of  James  Higgins, 
for  causing  his  death.    The  writ  was  dated  June  28,  1891,  and  the 
officer's  return  thereon  disclosed  an  attachment  of  certain  cars 
belonging  to  the  defendant  found  in  the  possession  of  another 
railroad  company  at  Northampton  in  this  Commonwealth.     The 
declaration  alleges  that   the  intestate   was   domiciled   in   Spring- 
field in  the  county  of  Hampden  in  this  Commonwealth;  that  the 
plaintiff  was  duly  appointed  tlie  administrator  of  his  estate  by  the 
judge  of  probate  of  that  county,  on  February  11,  1891  ;  that  the 
defendant  owned  and  operated  a  railroad  extending  from  a  point 
in  the  State  of  Connecticut  into  the  State  of  New  York ;  that  on 
October  24.  1890,  the  intestate,  while  employed  by  the  defendant 
as  a  freight  brakeman  and  engaged  in  the  discharge  of  his  duty  as 
such  and  in  the  exercise  of  due  care,  was  instantly  killed  in  a 
collision  which  occurred  through  the  defendant's  negligence ;  and 
that  "thereby  an  action  has  accrued  to  the  plaintiff,  as  adminis- 
trator as  aforesaid,  to  recover  damages  not  exceeding  five  thou- 
sand dollars,  by  virtue  of  sections  1008  and  1009  of  the  General 
Statutes  of  the  said  State  of  Connecticut,  and  he  claims  damages, 
as  administrator  aforesaid,  under  said  laws  and  statutes."     The 
defendant   demurred,   for   the   reason,    among  others,    that   "the 
plaintiff  cannot  maintain  an  action  in  this  Commonwealth  under 
or  by  reason  of  sections  1008  and  1009  of  the  General  Statutes 
of  the  State  of  Connecticut." 

The  Superior  Court  sustained  the  demurrer ;  and  the  plaintiff 
appealed  to  this  court. 

Barker,  J.     The  plaintiff's  intestate  was  domiciled  in  Massa- 


TORTS.  539 

chusetts,  where  the  plaintiff  was  appointed  administrator.  This 
being  the  principal  administration,  the  plaintiff  succeeded  as  well 
to  every  right  of  action  of  the  deceased  which  survived  as  to  his 
other  personal  property.  Upon  the  question  whether  such  an 
administrator  takes  a  right  of  action  by  succession  from  his  intes- 
tate, it  is  immaterial  that  the  right  arose  under  the  statute  of  a 
foreign  State ;  rather  than  under  the  common  law  or  the  statutes 
of  this  State ;  just  as  the  fact  that  the  intestate's  chattels  or  mer- 
chandise had  been  acquired  or  were  held  under  the  statutes  of  a 
foreign  State,  rather  than  under  the  law  of  his  domicil,  is  imma- 
terial upon  the  question  whether  such  merchandise  or  chattels 
pass  to  the  administrator. 

Such  an  administrator  is  entitled  to  the  aid  of  our  courts,  if 
they  have  jurisdiction  of  the  necessary  parties,  in  collecting  and 
reducing  into  money  the  property  which  he  takes  by  succession, 
whether  goods,  chattels,  or  choses  in  action. 

Suits  brought  to  enforce  rights  of  action  w^hich  the  deceased 
had,  and  which  survive  and  passed  from  him  to  his  adminis- 
trator, differ  essentially  from  those  which  this  court  refused  to 
entertain  in  Richardson  v.  New  York  Central  Railroad,  q8  Mass. 
85,  and  in  Davis  v.  New  York  &  Neni  England  Railroad,  143 
Mass.  301.  In  Richardson's  case  an  administrator  appointed 
here  sought  to  enforce  in  our  courts  a  cause  of  act'on  which  his 
intestate  never  had,  which  had  not  passed  to  the  administrator 
by  succession,  and  which  the  statutes  of  another  State  had  caused 
to  spring  up  at  the  death  of  the  intestate,  and  had  provided 
might  be  brought  by  and  in  the  names  of  his  personal  representa- 
tives, for  the  exclusive  benefit  of  his  widow  and  next  of  kin. 
In  Davis's  case  the  intestate  had  a  right  of  action  in  his  lifetime 
by  the  common  law  of  the  State  of  Connecticut,  where  he  was 
injured;  but  by  the  law  of  Connecticut  his  right  of  action  did 
not  survive,  and  was  extinguished  at  his  death,  while  a  penal 
action  created  by  statute  was  substituted  for  it  in  that  State. 

In  the  present  case  the  plaintiff's  intestate  is  alleged  to  have 
been  instantly  killed  in  Connecticut,  by  the  defendant's  negli- 
gence. It  is  conceded  that  the  statute  of  that  State  makes  the 
defendant  liable  to  pav  damages  for  the  injury  which  caused  his 
death.  Can  his  administrator  sue  here  to  recover  such  damages? 
The  Connecticut  statute  places  in  one  category  "all  actitMis  for 
injury  to  the  person,  whether  the  same  do  or  do  not  instanta- 
neously or  otherwise  result  in  death,"  and  all  actions  "to  the 
reputation,  or  to  the  property,  and  actions  to  recover  damages 


540  PRIVATE    INTERNATIONAL    LAW. 

for  injury  to  the  person  of  the  wife,  child,  or  servant  of  any  per- 
son," and  provides  that  all  shall  survive  to  the  executor  or  ad- 
ministrator. Gen.  Sts.  of  Conn,  of  1888,  §  1008.  One  evident 
purpose  of  this  statute  was  to  give  to  actions  for  injuries  result- 
ing in  instantaneous  death  the  same  incidents  as  actions  which 
survive  have.  It  is  grouped  with  actions  which  survive  for  other 
injuries  to  the  person,  and  for  injuries  to  reputation  and  to  prop- 
erty, and  all  are  said  to  survive.  The  putting  in  operation  of  the 
negligent  or  unlawful  forces  which  cause  an  instantaneous  death 
is  a  wrong  to  the  person  killed,  which,  by  more  or  less  of  appreci- 
able time,  precedes  his  death.  If  the  law  of  the  country  where 
such  a  wrong  is  committed  gives  to  the  person  killed  a  right  of 
action,  and  provides  that  it  shall  survive  to  his  administrator, 
there  is  no  difficulty  in  considering  that  the  deceased  had  that 
right  of  action  at  the  instant  when  he  was  znviis  et  mortuus,  and 
that  by  express  provisions  of  law  it  is  made  to  survive  and  to  pass 
to  his  administrator.  This  the  statute  referred  to  has  plainly 
attempted  to  do.  As  was  held  in  Davis  v.  Nciv  York  &  Neiv 
England  Railroad,  iihi  stipra,  it  is  the  right  of  each  State  "to  de- 
termine by  its  laws  under  what  circumstances  an  injury  to  the 
person  will  afford  a  cause  of  action."  Viewing  this  statute  of 
Connecticut  as  a  whole,  it  plainly  puts  such  causes  of  action  as 
the  present  upon  the  footing  of  personal  actions  which  survive, 
and  which  are  everywhere  considered  transitory;  that  is,  they  go 
with  the  person  who  has  the  right  of  action  where  he  goes,  and 
are  enforceable  in  any  forum  according  to  its  rules  of  procedure. 
If  they  survive,  such  actions,  like  other  personal  estate,  are  con- 
sidered to  have  situs  in  the  place  of  domicil,  and  to  pass  to  the 
administrator  there  appointed.  Viewing  the  causes  of  action  with 
which  the  Connecticut  statute  deals  in  connection  with  the  one 
now  sued  on,  our  own  statutes  of  survivorship  are  similar.  There 
is,  therefore,  nothing  in  the  nature  of  the  cause  of  action  as  so 
far  developed  to  prevent  our  courts  from  entertaining  it  upon 
principles  generally  recognized. 

Assuming  that  the  cause  of  action  is  one  not  existing  at  the 
common  law,  but  created  by  the  statute  of  another  State,  we 
have  seen  that  it  is  transitory,  and  that  it  survives  and  passes 
from  the  deceased  to  his  administrator.  When  an  action  is 
brought  upon  it  here,  the  plaintiff  is  not  met  by  any  difficulty 
upon  these  points.  Whether  our  courts  will  entertain  it  depends 
upon  the  general  principles  which  are  to  be  applied  in  deter- 
mining the  question  whether  actions  founded  upon  the  laws  of 


TORTS.  541 

Other  States  shall  be  heard  here.  These  principles  require  that, 
in  cases  of  other  than  penal  actions,  the  foreign  law,  if  not  con- 
trary to  our  public  policy,  or  to  abstract  justice  or  pure  morals, 
or  calculated  to  injure  the  State  or  its  citizens,  shall  be  recog- 
nized and  enforced  here,  if  we  have  jurisdiction  of  all  necessary 
parties,  and  if  we  can  see  that,  consistently  with  our  own  forms 
of  procedure  and  law  of  trials,  we  can  do  substantial  justice  be- 
tween the  parties.  If  the  foreign  law  is  a  penal  statute,  or  if 
it  cfifends  our  own  policy,  or  is  repugnant  to  justice  or  to  good 
morals,  or  is  calculated  to  injure  this  State  or  its  citizens,  or  if 
we  have  not  jurisdiction  of  parties  who  must  be  brought  in  to 
enable  us  to  give  a  satisfactory  remedy,  or  if  under  our  forms  of 
procedure  an  action  here  cannot  give  a  substantial  remedy,  we 
are  at  liberty  to  decline  jurisdiction.  Blanchard  v.  Russell,  13 
Mass.  I,  6.  Prentiss  v.  Savage,  13  Mass.  20,  24.  Ingrahain  v. 
Geyer,  13  Mass.  146.  Tappan  v.  Poor,  15  Mass.  419.  Zipcey 
V.  Thompson,  i  Gray,  243,  245.  Erickson  v.  Nesmith,  15  Gray, 
221,  and  4  Allen,  233,  236.  Halsey  v.  McLean,  12  Allen,  438, 
443.  Neiv  Haven  Horse  Nail  Co.  v.  Linden  Spring  Co.  142  Mass. 
349'  353-     Bank  of  North  America  v.  Rindge,  154  Mass.  203. 

Applying  these  rules,  we  find  no  sufficient  reason  for  declin- 
ing to  entertain  the  present  action.  Our  own  statutes  have,  in 
several  instances,  changed  the  policy  of  the  common  law,  so  as  to 
allow  damages  for  death  occasioned  by  negligence.  Pub.  Sts. 
c.  52,  §  17;  c.  73,  §  6;  c.  112.  §  212.  St.  1883,  c.  243.  St.  1887, 
c.  270,  §  2.  The  rigiit  created  by  the  Connecticut  statute  is  in 
terms  a  right  to  recover  "just  damages."  Gen.  Sts.  of  Conn,  of 
1888,  §  1009.  Neither  the  fact  that  the  statute  creating  it  limits 
the  amount  of  the  recovery  to  a  sum  not  exceeding  five  thousand 
dollars,  nor  that  the  damages  arc  to  be  distributed  to  the  husband, 
widow,  heirs,  or  next  of  kin,  makes  it  a  penal  action.  The  effect 
of  such  provisions  as  to  the  distribution  of  the  damages  is  to  say 
that  they  shall  not  be  assets  for  the  payment  of  debts,  and  shall 
not  pass  by  the  will  of  the  deceased,  but  shall  be  applied  to  the 
compensation  of  the  persons  who  are  presumed  to  have  suffered 
the  most  by  the  death  of  the  person  injured.  Such  a  right  is 
not  unjust,  nor  contrary  to  good  morals,  nor  calculated  to  injure 
the  State  or  its  citizens.  Our  courts  have  jurisdiction  of  the 
necessary  parties.  Looking  at  the  statute  creating  the  right  of 
action  as  a  part  of  the  sytem  of  law  in  force  in  Connecticut,  and 
considering  that,  if  the  action  is  to  be  prosecuted  here,  our  rules 
of  law  regulating  procedure,  and  fixing  the  elements  which  are 


542  PRIVATE     INTERNATIONAL    LAW. 

to  enter  into  the  assessment  of  the  damages,  must  govern  the 
trial,  it  is  probable  that  the  result  will  not  be  exactly  the  same  as 
if  the  remedy  had  been  pursued  in  Connecticut.  But  we  see  no 
such  difficulty  as  to  lead  us  to  suppose  that  injustice  may  be  done 
to  the  defendant,  and  none  which  ought  to  make  us  decline  juris- 
diction, if  the  plaintiff  elects  to  sue  here. 

The  statutes  which  create  and  limit  the  right  of  action  are 
found  in  the  provisions  regulating  civil  actions  in  the  courts  of 
Connecticut,  and  are  part  of  its  general  system  of  law.  By  "the 
costs  and  expenses  of  suit,"  which,  under  §  1009,  are  to  be 
deducted  from  the  damages  before  they  are  distributed,  were 
intended  costs  of  suit  allowed  under  Connecticut  laws,  and  the 
expenses  of  the  suit  exclusive  of  such  costs,  these  expenses,  in- 
cluding those  of  trials  not  resulting  in  a  verdict,  are  a  constituent 
element  of  the  "just  damages"  under  the  Connecticut  system. 
The  same  system  allows  exemplary  and  vindictive  damages. 
Noyes  v.  Ward,  19  Conn.  250.  Beecher  v.  Derby  Bridge  &  Ferry 
Co.  24  Conn.  491,  497.  Murphy  v.  Nezv  York  &  Nezv  Haven 
Railroad,  29  Conn.  496,  499.  If,  in  the  action  prosecuted  here, 
neither  the  expenses  of  the  suit  nor  exemplary  nor  vindictive 
damages  can  be  recovered,  that  fact  is  no  hardship  upon  the  de- 
fendant. There  is  no  reason  why  the  plaintiff  may  not  be  allowed 
to  waive  those  elements  of  damage,  by  bringing  his  action  in  a 
forum  where  they  cannot  be  allowed.  It  is  also  a  part  of  the 
Connecticut  system,  that,  upon  the  default  of  a  defendant  in  such 
actions,  the  plaintiff  has  no  right  to  haye  his  damages  assessed  by 
a  jury,  and  in  practice  the  assessment  is  uniformly  made  by  the 
court  alone.  Gen.  Sts.  of  Conn,  of  1888,  §  1106.  Raymond  v. 
Danb'iry  &  A^orivalk  Railroad,  43  Conn.  596,  598.  Upon  such 
assessment  in  Connecticut,  the  defendant,  to  reduce  the  damages 
to  a  nominal  sum,  may  show  contributory  negligence,  or  any 
matter  which,  if  pleaded  and  proved  in  bar,  would  have  defeated 
the  action.  Daily  v.  New  York  &  New'  Haven  Railroad,  32  Conn. 
356.  Carey  v.  Day,  36  Conn.  152.  But  even  if  it  appeared  that 
the  motive  for  bringing  an  action  here  was  to  insure  an  assess- 
ment of  the  damages  by  a  jury,  we  cannot  perceive  in  that  a  valid 
reason  for  declining  to  take  jurisdiction. 

It  is  to  be  noticed  that,  while  the  statute  upon  which  the  plain- 
tiff founds  his  claim  makes  the  cause  of  action  one  which  accrued 
to  the  plaintift''s  intestate  in  his  lifetime,  and  provides  that  it 
shall  survive  and  pass  to  his  administrator,  it  does  not  say  in 
terms  that  the  damages  shall  or  shall  not  be  assets  of  the  intes- 


TORTS.  543 

tate  estate,  but  provitics  that  they  shall  be  distributed  in  a  way 
which  may  or  may  not  be  different  from  the  disposition  to  Ix: 
made  under  our  law  of  the  assets  of  the  deceased  to  be  adminis- 
tered. As  this  intestate  was  domiciled  in  Massachusetts,  we  are 
not  to  be  taken  as  now  deciding  how  any  damages  which  the 
plaintiff  may  recover  are  to  l)e  here  administered. 

Demurrer  overruled. 

HERRICK  V.  MINNEAPOLIS  &  ST.   LOUIS  RY.,   1883. 

[31    Minn.    11.] 

Mitchell,  J.  The  defendant  owned  and  operated  a  line  of 
railroad  from  Albert  Lea,  in  this  state,  to  Fort  Dodge,  in  the  state 
of  Iowa.  The  plamtiff  entered  the  service  of  defendant,  in  Iowa, 
as  brakeman  on  one  of  its  trains,  to  be  operated  wholly  in  that 
state.  While  coupling  cars  on  his  train  in  the  discharge  of  his 
duty  in  that  state,  plaintiff"  was  injured  through  the  negligence 
of  the  engmeer  m  charge  of  the  train,  vmder  such  circumstances 
as  to  give  him  a  right  of  action  under  a  statute  of  Iowa,  which 
makes  every  corporation  operating  a  railway  in  that  state  liable 
for  all  damages  sustained  by  any  person,  including  employes  of 
such  corporation,  in  consequence  of  the  neglect  of  agents,  or  by 
mismanagement  of  the  engineers  or  other  employes  of  such  cor- 
poration, when  such  wrongs  are  in  any  manner  connected  with 
the  use  or  operation  of  any  railway  on  or  about  which  they  shall 
be  employed.  Code  of  Iowa,  1873,  tit.  10,  c.  5,  §  1307.  This 
action  was  brought  to  recover  damages  for  the  personal  injury 
thus  sustained  in  that  state.  The  court  below  dismissed  the  action, 
on  the  ground  that  the  right  of  action  thus  accruing  under  the 
statute  of  Iowa  could  only  be  enforced  in  that  state.  The  correct- 
ness of  this  ruling  is  the  oidy  question  involved  in  this  appeal. 

The  general  rule  is  that  actions  for  personal  torts  are  trans- 
itory in  their  nature,  and  may  be  brought  wherever  the  wrong- 
doer may  be  found,  and  jurisdiction  of  his  person  can  be  obtained. 
As  to  torts  which  give  a  right  of  action  at  common  law.  this  rule 
has  never  been  questioned,  and  we  do  not  see  why  the  transitory 
character  of  the  action,  or  the  jurisdiction  of  the  courts  of 
another  state  to  entertain  it,  can  in  any  manner  be  affected  by  the 
question  whether  the  right  of  action  is  statutory  or  common-law. 
In  actions  ex  contractu  there  is  no  such  distinction,  and  there  is 
no  good  reason  why  anv  different  rule  should  be  applied  in 
actions  e.v  delicto.     W'henever,  bv  cither  common  law  or  statute, 


544  PRIVATE    INTERNATIONAL    LAW. 

a  right  of  action  has  become  fixed  and  a  legal  liability  incurred, 
that  liability,  if  the  action  be  transitory,  may  be  enforced,  and  the 
right  of  action  pursued,  in  the  courts  of  any  state  which  can 
obtain  jurisdiction  of  the  defendant,  provided  it  is  not  against  the 
public  policy  of  the  laws  of  the  state  where  it  is  sought  to  be 
enforced.  Of  course,  statutes  that  are  criminal  or  penal  in  their 
nature  will  only  be  enforced  in  the  state  which  enacted  them ;  but 
the  statute  under  which  this  action  is  brought  is  neither,  being 
purely  one  for  the  reparation  of  a  civil  injury. 

The  statute  of  another  state  has,  of  course,  no  extraterritorial 
force,  but  rights  acquired  under  it  will  always,  in  comity,  be 
enforced,  if  not  against  the  public  policy  of  the  laws  of  the  former. 
In  such  cases  the  law  of  the  place  where  the  right  was  acquired, 
or  the  liability  was  incurred,  will  govern  as  to  the  right  of  action; 
while  all  that  pertains  merely  to  the  remedy  will  be  controlled  by 
the  law  of  the  state  where  the  action  is  brought.  And  we  think 
the  principle  is  the  same,  whether  the  right  of  action  be  ex  con- 
tr<actu  or  ex  delicto. 

The  defendant  admits  the  general  rule  to  be  as  thus  stated, 
but  contends  that  as  to  statutory  actions  like  the  present,  it  is 
subject  to  the  qualification  that,  to  sustain  the  action,  the  law  of 
the  forum  and  the  law  of  the  place  where  the  right  of  action 
accrued  must  concur  in  holding  that  the  act  done  gives  a  right 
of  action.  We  admit  that  some  text-writers — notably,  Rorer  on 
Inter-State  Law — seem  to  lay  down  this  rule,  but  the  authorities 
cited  generally  fail  to  sustain  it.  We  have  examined  all  the 
numerous  cases  cited  on  this  point  by  defendant,  and  we  find 
only  one  which,  in  our  opinion,  sustains  him,  while  several  are 
really  against  him.  Most  of  the  cases  thus  cited  belong  to  one 
or  the  other  of  the  two  following  classes  :  First,  cases  which  hold 
that  statutes  giving  a  right  of  action  for  injuries  causing  the 
death  of  another,  having  no  extraterritorial  operation,  only  apply 
to  injuries  inflicted  in  the  State  which  enacted  the  statute,  and  not 
to  injuries  inflicted  or  acts  done  in  another  state.  Such  is  the 
case  of  Whitford  v.  Panama  R.  Co.,  23  N.  Y.  465.  This  undoubt- 
edly is  the  settled  law,  but  it  does  not  touch  the  present  case. 
The  second  class  consists  of  cases  which  hold  that  where  the 
statute  gives  such  a  right  of  action  to  the  personal  representatives 
of  the  deceased,  it  can  only  be  maintained  by  an  administrator  or 
executor  appointed  and  acting  under  the  laws  of  the  state  which 
enacted  the  statute,  taking  the  ground  that  this  right  of  action 
is  not  a  right  of  property  which  passes  to  the  estate,  but  is  for 


TORTS.  545 

the  benefit  of  the  family  or  next  of  kin  of  the  deceased,  and  there- 
fore the  statute  contemplates  the  exercise  of  the  power  and  the 
execution  of  the  trust  only  by  a  personal  representative  appointed 
under  domestic  laws.  To  this  class  belong  the  cases  of  Richard- 
son V.  N.  Y.  Central  R.  Co.,  98  Mass.  85,  and  IVoodzcard  v. 
Michigan,  etc.,  R.  Co.,  10  Ohio  St.  121.  Some  courts  refuse  to 
adopt  this  rule.  But  this  question  is  not  involved  in  the  present 
case. 

A  few  cases  appear  to  lay  some  stress  upon  the  fact  that  the 
statutes  of  both  states  were  similar,  but  rather  as  evidence  of  the 
fact  that  the  statute  of  the  state  giving  the  right  of  action  is  not 
contrary  to  the  i^olicy  of  the  laws  of  the  state  where  the  action  is 
brought.  Such  is  the  case  of  Chicago,  etc.,  R.  Co.  v.  Doyle,  8 
Am.  &  Eng.  R.  Cases,  171,  in  which,  after  saying  that  the  action 
may  be  asserted  because  of  the  coincidence  of  the  statutes  of  the 
two  states,  the  court  add :  "And,  independently  of  this,  because  a 
right  of  action  created  by  the  statute  of  another  state,  of  a  trans- 
itorv  nature,  mav  be  enforced  here  when  it  does  not  conflict  with 
the  public  policy  of  this  state  to  permit  its  enforcement;  and  our 
statute  is  evidence  that  our  policy  is  favorable  to  such  rights  of 
action  instead  of  being  inimical  to  them."  But  it  by  no  means 
follows  that,  because  the  statute  of  one  state  differs  from  the  law 
of  another  state,  therefore  it  would  be  held  contrary  to  the  policy 
of  the  laws  of  the  latter  state.  Every  day  our  courts  are  enforcing 
rights  under  foreign  contracts  where  the  lex  loci  contractus  and 
the  le.v  fori  are  altogether  different,  and  yet  we  construe  these 
contracts  and  enforce  rights  under  them  according  to  their  force 
and  effect  under  the  laws  of  the  state  where  made.  To  justify  s 
court  in  refusing  to  enforce  a  right  of  action  which  accrued  under 
the  law  of  another  state,  because  against  the  policy  of  our  laws, 
it  must  appear  that  it  is  against  good  morals  or  natural  justice, 
or  that,  for  some  other  such  reason,  the  enforcement  of  it  would 
be  prejudicial  to  the  general  interests  of  our  own  citizens.  If 
the  state  of  Iowa  sees  fit  to  impose  this  liability  upon  those  operat- 
ing railroads  within  her  bounds, and  to  make  it  a  condition  of  the 
employment  of  those  who  enter  their  service,  we  see  nothing  in 
such  a  law  repugnant  either  to  good  morals  or  natural  justice,  or 
prejudicial  to  the  interests  of  our  own  citizens. 

The  only  case  which  goes  to  the  length  of  holding  that  this 

action  cannot  be  maintained,  is  that  of  Anderson  v.  Milii.'aukee  & 

St.  P.  Rv.  Co.,  37  Wis.  321.  which,  on  the  facts,  is  on  all-fours 

with  the  present  case,  and  in  which  the  court  holds  that  such  an 

35 


546  PRIVATE    INTERNATIONAL    LAW. 

action  will  only  lie  in  the  state  of  Iowa,  which  enacted  the  statute. 
But  with  due  deference  to  that  court,  and  especially  to  the  eminent 
jurist  who  delivered  the  opinion  in  that  case,  we  think  they 
entirely  failed  to  distinguish  between  the  right  of  action,  which 
was  created  by  the  statute  of  Iowa  and  must  be  governed  by  it, 
and  the  form  of  fhe  remedy,  which  is  always  governed  by  the  law 
of  ihe  forum,  whether  the  action  be  ex  contractu  or  ex  delicto.  It 
is  elementary  that  the  remedy  is  governed  by  the  law  of  the 
forun),  and  this  is  all  that  is  held  by  any  case  cited  by  the  court  in 
support  of  their  opinion. 

The  case  of  Bettys  v.  Milwaukee  &  St.  P.  Ry.  Co.,  37  Wis. 
323,  was  an  action  brought  under  an  Iowa  statute  to  recover 
double  damages  for  cattle  killed  in  Iowa.  This  case  was  probably 
correctly  decided  upon  the  second  ground  stated  in  the  opinion, 
viz.,  that  the  statute  was  penal,  and  therefore  could  only  be  en- 
forced in  the  state  which  enacted  it. 

The  following  cases,  we  think,  support  our  conclusion  that 
this  action  may  be  maintained,  although  we  have  no  such  statute 
in  this  state:  Dennick  v.  Railroad  Co.,  103  U.  S.  11 ;  Leonard  v. 
Steam  Nav.  Co.,  84  N.  Y.  48;  Chicago,  etc,  R.  Co.  v.  Doyle, 
supra;  Nashville  &  C.  R.  Cc.  v.  Sprayberry,  8  Baxt.  (Tenn.) 
341.  See,  also,  Selma,  etc.,  R.  Co.  v.  Lacy,  43  Ga.  461,  and  S.  C, 
49  Ga.  106. 

2.  The  defendant  further  contends  that  the  statute  of  Iowa 
is  in  violation  of  the  rburteenth  amendment  to  the  constitution 
of  the  United  States,  which  declares  that  "no  state  shall  deny  to 
anv  person  within  its  jurisdiction  the  equal  protection  of  the 
laws."  The  ground  for  this  contention  consists  in  the  fact  that 
the  law  does  not  apply  to  all  persons,  but  only  to  railroad  com- 
panies, thus  imposing  on  them  a  liability  not  imposed  on  others. 
There  is  great  danger  that  some  of  the  provisions  of  this  four- 
teenth amendment  will  be  attempted  to  be  applied  to  cases  for 
which  it  was  never  designed.  In  view  of  the  history  surrounding 
its  adoption,  we  doubt  whether  it  was  ever  intended  to  apply  to 
cases  like  the  present.  But,  even  if  it  was,  we  find  nothing  in 
this  statute  repugnant  to  its  provisions.  The  provision  of  the  con- 
stitutional amendment  referred  to  does  not  surround  the  citizen 
with  any  protection  additional  to  those  before  given  under  the 
constitutions  of  the  states.  It  was  not  in  the  power  of  the  states, 
before  the  adoption  of  this  amendment,  to  deprive  citizens  of  the 
United  States  of  the  equal  protection  of  the  laws ;  the  only  change 
produced  bv  making  this  constitutional  principle  a  part  of  the 


INTESTATE    SUCCESSION.  547 

federal  constitution  is  to  make  the  supreme  court  of  the  United 
States  the  tinal  arbiter  of  cases  in  which  a  violation  of  this  prm- 
cipie  by  state  law  is  complained  of.  If  a  state,  in  view  of  the 
peculiar  nature  of  the  service  upon  railroads,  and  the  danger  inci- 
dent to  it,  shall,  as  a  matter  of  state  policy,  require  these  corpora- 
tions, which  are  creatures  of  its  statutes,  to  assume  the  risk  of 
injuries  to  their  servants  resulting  from  the  negligence  of  fellow- 
servants  also  in  their  employ,  we  think  they  have  a  right  to  do  so. 
Statutes  imposing  special  duties  and  liabilities  upon  railroad  com- 
panies are  to  be  found  on  the  statute-books  of  almost  every  state, 
and,  if  general  in  their  application  to  all  such  corporations,  they 
are  valid.  McAiinich  v.  Mississippi  &  M.  Ry.  Co.,  20  Iowa,  338; 
Johnson  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  29  Minn.  425. 
Order  reversed. 


INTESTATE  SUCCESSION. 

LAWRENCE  v.  KITTERIDGE,  1852. 

[21   Conn.  576.] 

I.  Law  of  Domicil  of  an  Intestate  2.  Law  of  Place  where  Real  Estate 

at  Time  of  Death  Determines  is  Situated  Determines  Descent 

Distribution  of  Personal  Prop-  of  Real  Estate, 
erty. 

This  was  an  appeal  from  two  decrees  of  the  court  of  probate 
for  the  district  of  Norfolk ;  one  passed  on  the  29th  day  of  Septem- 
ber, 1 85 1,  and  the  other  on  the  20th  day  of  October,  185 1.  The 
former  directed,  that  the  remainder  of  the  estate  of  Cephas  Petti- 
bone,  deceased,  situate  in  the  district  of  Norfolk,  after  payment  of 
the  debts  and  charges  against  that  estate  in  this  state,  should  be 
transmitted  to  the  administrator  on  such  estate  in  the  state  of 
Vermont,  there  to  be  distributed  according  to  the  laws  of  that 
state,  and  not  according  to  the  laws  of  this  state.  By  the  latter 
decree,  in  the  settlement  of  the  administration  account,  the  sum 
of  forty-one  dollars,  thirty-one  cents,  was  allowed  against  said 
estate  to  Michael  F.  Mills,  Esq. 

At  the  hearing  before  the  superior  court,  February  tenn. 
1852,  the  following  facts  were  found. 

In  relation  to  the  first  decree  appealed  from,  Cephas  Petti- 
bone,  the  settlement  of  whose  estate  was  in  question,  died  intes- 
tate, leaving  no  children,  nor  the  representatives  of  any  children. 


^1/h  t^\  "^^^^  Ci^Jey  tk'H^.  ^ai  /  -V.  /^i^iiL  ^^T^W 


'^^"'     Fidft  I  AH/    PRIVATE    INTERNATIONAL    LAW.  '  r 


'*^C^^-^J^^^'*     548       '  I  k  n/    PRIVATE    INTERNATIONAL    LAW 

but  a  brother  of  the  whole  blood,  Augustus  Pettibone,  Esq.,  late 
of  Norfolk,  since  deceased,  and  several  brothers  and  sisters  of 
the  half  blood,  residing  in  Vermont,  or  elsewhere,  out  of  the  juris- 
diction of  this  state.  At  the  time  of  Cephas  Pettibone's  decease, 
he  was  an  inhabitant  of,  and  had  his  domicil  in,  the  state  of  Ver- 
mont. All  his  personal  estate  consisted  of  a  debt  of  about  one 
thousand  dollars,  due  from  the  estate  of  said  Augustus  Pettibone, 
who,  at  the  time  of  his  death,  and  for  many  years  before,  resided 
in  this  state.  Original  administration  on  the  estate  of  Cephas 
Pettibone  was  granted  in  Vermont,  and  was  in  progress,  when 
an  ancillary  administration  was  granted  in  this  state,  and  the  first 
decree  appealed  from,  was  passed.  At  this  time,  there  were  no 
unsatisfied  debts  due  from  the  estate,  here  or  in  Vermont;  and 
nothing  to  complete  the  settlement  of  the  estate,  remained  to  be 
done,  except  the  distribution  thereof. 

As  to  the  last  decree,  it  was  found,  that  at  the  death  of  the 
intestate,  there  was  justly  due  from  his  estate  to  Michael  F. 
Mills,  Esq..  the  sum  of  forty-one  dollars,  thirty-five  cents;  and  it 
was  agreed  between  him  and  W.  C.  Kitteridge,  the  administrator 
in  Vermont,  that  the  latter  should  become  personally  responsible 
for  the  debt,  and  gave  said  Mills  a  receipt  in  discharge  of  his 
claim  against  the  estate;  which  was  done.  The  object  of  this 
arrangement  was.  to  enable  the  administrator  to  settle  his  admin- 
istration account. 

E.  Grove  Lawrence,  the  appellant,  is  the  devisee,  and  one 
of  the  heirs  at  law,  of  said  Augustus  Pettibone,  the  brother  of  the 
whole  blood  of  the  intestate,  and  is  thus  interested  in  the  distri- 
bution of  the  estate  in  question. 

The  case  was  reserved  for  the  advice  of  this  court  as  to  what 
judgment  should  be  rendered  thereon. 

Church,  Ch.  J.  The  first  decree  of  the  court  of  probate 
appealed  from,  was  predicated  upon  facts  essentially  as  follows, 
viz.,  Cephas  Pettibone,  the  mtestate,  at  the  time  of  his  death,  was 
an  inhabitant  of,  and  had  his  domicil  in,  the  state  of  Vermont, 
and  was  possessed  of  an  estate  there ;  and  there  was  due  to  him 
here,  from  a  citizen  of  this  state,  a  debt  of  about  one  thousand 
dollars.  Original  administration  upon  his  estate  was  granted  in 
the  state  of  Vermont,  and  was  in  progress,  when  an  ancillary 
administration  was  granted  in  this  state.  When  the  decree  ap- 
pealed from  was  made,  there  were  no  unsatisfied  debts  due  from 


INTESTATE    SUCCESSION.  549 

the  estate,  here  or  in  Vermont,  and  nothins;-  but  a  (Hstrihution  of 
the  estate  remained  to  be  done. 

The  intestate  died,  leaving  brothers  and  sisters  of  the  whole 
and  half  blood ;  all,  excepting  the  late  Augustus  Pettibone,  Esq., 
of  Norfolk,  who  was  a  brother  of  the  whole  blood,  residing  in 
Vermont,  or  elsewhere,  out  of  this  state;  and  he  had  no  other 
heirs  at  law.  By  the  laws  of  Vermont,  the  brothers  and  sisters  of 
an  intestate  of  the  wiiole  and  half  blood  are  entitled  equally  to 
the  estate,  under  the  statute  of  distribution. 

Upon  the  foregoing  state  of  facts,  the  court  of  probate  for 
the  district  of  Norfolk  was  of  opinion,  that  the  personal  estate 
of  Cephas  Pettibone — the  chose  in  action  of  one  thousand  dol- 
lars— should  be  distributed  according  to  the  laws  of  the  state  of 
Vermont ;  and  that  this  could  better  be  done,  and  without  injury 
to  any  citizen  of  this  state,  by  transmitting  the  money  to  the 
administrator  there,  and  to  the  jurisdiction  of  the  court  of  prin- 
cipal administration,  than  to  order  a  distribution  of  it  here.  And 
therefore,  the  decree  appealed  from,  was  made. 

The  Appellant,  who  is  the  representative  of  Augustus  Petti- 
bone, the  brother  of  the  whole  blood  residing  in  the  district  of 
Norfolk,  objects  to  this  decree,  and  appeals  from  it.  He  claims,  I 
that  the  assets  or  money  in  the  hands  of  the  administrator  here,  i 
should  have  been  distributed  here,  and  according  to  the  laws  of 
this  state,  which  prefer  a  brother  or  sister  of  the  whole  blood  to 
one  of  the  half  blood. 

I.  We  had  supposed,  that  the  law  of  the  country  of  the 
domicil  of  an  intestate  governed  and  regulated  the  distribution 
of  his  personal  estate;  and  that  this  was  a  principle  of  interna- 
tional law,  long  ago  recognized  by  jurists  in  all  enlightened  gov- 
ernments, and  especially  recognized  by  this  court,  in  the  recent 
case  of  Holcomb  v.  Phelps^  i6  Conn.  R.  127,  133,  in  which  we 
say,  that,  "It  certainly  is  now  a  settled  principle  of  international 
law,  that  personal  property  shall  be  subject  to  tliat  law  which 
governs  the  person  of  the  owner,  and  that  the  distribution  of  and 
succession  to  personal  property,  wherever  situated,  is  to  be  gov- 
erned bv  the  laws  of  that  country  where  the  owner  or  intestate 
had  his  domicil  at  the  time  of  his  death."  Sto.  Confl.  Laws,  403. 
in  notis,  §§  480,  465.  2  Kent's  Com.  Lect.  37.  2  Kaine's  Prin.  Eq. 
312,  826.  Potter  V.  Brozvn,  5  East,  124.  Balfour  v.  Scott,  6  Bro. 
Pari.  Cas.  550.  ( Toml.  ed.)  Bdnphc  v.  Johnstone,  2  Ves.  198. 
Pepon  V.  Fepon,  Amb.  25,  415.  Guicr  v.  O'Daniel,  i  Binn.  349. 
in  notis.     Harvey  v.  Richards,  i  Mason,  381. 


UUMMA/t^  IJ 


550  PRIVATE    INTERNATIONAL    LAW. 

It  is  not  necessary  that  we  should  now  examine  the  reasons, 
whether  of  public  policy  or  legal  propriety,  which  have  led  the 
tribunals  of  civilized  nations  to  relax  from  antiquated  notions  on 
this  subject ;  some  of  these  are  well  considered,  by  Judge  Story, 
in  the  case  of  Harvey  v.  Richards,  i  Mason,  381,  and  by  Chan- 
cellor Kent,  in  his  Commentaries,  vol.  2,  Lect.  37. 

It  is  true,  that  it  is  in  the  power  of  every  sovereignty, 
and  within  the  constitutional  powers  of  the  states  of  this  Union, 
to  repudiate  this  salutary  doctrine,  in  its  application  to  them- 
selves, or  to  modify  it,  for  what  they  may  suppose  to  be  the  pro- 
tection of  their  own  citizens;  but  without  some  peculiar  neces- 
sity, it  cannot  be  supposed,  that  any  well  regulated  government 
will  do  it.  It  was  claimed  in  argument,  in  this  case,  that  this  had 
been  done  in  this  state,  and  by  the  provision  of  the  49th  section 
of  our  statute  for  the  settlement  of  estates,  (Stat.  357.)  by  de- 
claring, that  when  there  are  no  children,  &c.  of  an  intestate,  his 
"real  and  personal  estate  shall  be  set  off  equally  to  the  brothers 
and  sisters  of  the  whole  blood."  But  it  was  not  the  purpose  of  ^ 
this  provision  to  disregard  the  universal  and  salutary  doctrine  of 
the  law  to  which  we  have  referred,  but  only  to  regulate  the 
descent  and  distribution  of  the  estate  of  our  own  citizens.  This 
provision  of  our  statute  is  not  peculiar  to  ourselves ;  a  similar  one, 
vv'e  presume,  may  be  found  in  the  codes  of  other  states ;  at  least, 
im.perative  enactments  exist  in  every  state,  directing  the  distribu- 
tion of  estates ;  but  none  of  them  are  intended  to  repeal  the  law  of 
the  domicil  in  its  effect  upon  the  personal  estate  of  the  owner. 
The  controversy,  in  the  case  of  Holcomh  v.  Phelps,  arose  under 
the  same  section  of  our  law  as  does  the  one  now  under  consider- 
ation, and  the  result  of  that  case  must  settle  this  question,  if  it  be 
one. 

There  are  cases,  in  which  the  law  of  the  domicil  has  been 
modified  or  restrained,  in  its  full  operation,  for  what  courts  have 
supposed  to  be  the  proper  protection  of  the  rights  of  the  citizens 
of  their  own  states ;  but  these  are  generally  confined  to  cases  in 
which  creditors  are,  in  some  way  interested  under  insolvent  pro- 
ceedings, assignments,  or  bankrupt  laws,  and  never,  we  believe, 
are  extended  to  mere  cases  of  distribution,  as  here  claimed.  Sto. 
Conf.  L.  277,  §  337. 

The  views  of  the  court  of  probate  in  regard  to  the  operating 
law  of  distribution,  in  this  case,  were  correct;  and  the  jemaiaiug 
(^estion,  in  this  part  of  the  case,  is  whether  the  decree  which  fol- 
lowe37cnrecting  the  money  in  the  hands  of  the  administrator  here, 


INTESTATE    SUCCESSION.  551 

to  be  transmitted  to  the  proper  jurisdiction  in  Vermont,  for  flis- 
tribution,  should  be  reversed ;  or  whether  the  court  here,  should, 
by  its  own  decree,  have  made  distribution  according  to  the  laws 
of  Vermont? 

There  was  but  one  estate  to  be  settled ;  and  this  was,  in  legal 
view,  attached  to  the  person  of  the  owner,  at  the  time  of  his 
death,  so  far  as  it  was  personal.  There  were  two  administra- 
tions ;  one  original  and  principal  in  Vermont ;  the  other  ancillary 
and  subordinate,  in  this  state.  Perkins  v.  Stone,  i8  Conn.  R. 
270.     Sto.  Conf.  L.  423. 

The  creditors  of  this  estate,  and  all  persons  having  claims 
upon  it,  in  this  state  and  in  Vermont,  were  satisfied,  and  nothing 
remained  to  be  done,  but  in  the  distribution  of  it  among  those 
who,  by  the  laws  of  the  state  of  Vermont,  were  entitled  to  it. 
Why  were  two  distributions  of  this  one  estate  necessary?  With- 
out special  reasons  requiring  a  dififcrent  course,  there  would  seem 
to  be  a  propriety,  that  the  consummating  act  in  the  settlement, 
should  have  been  done,  by  the  tribunal  exercising  the  principal 
jurisdiction,  and  that  the  money  accidentally  and  temporarily  in 
this  state,  should  be  transmitted  thither,  for  that  purpose.  Other- 
wise, there  might  have  been  conflicting  decrees,  and  the  courts  of 
the  different  jurisdictions,  upon  varying  proofs,  might  have 
found  dififerent  persons  entitled  to  take  as  distributees.  The  law 
of  Vermont  was  the  governing  law,  and  known  to  the  courts  of 
that  state,  as  a  matter  of  certainty ;  but  here,  to  be  ascertained 
only  by  proofs,  as  a  matter  of  fact. 

There  are  cases  in  which  the  courts  of  the  ancillary  adminis- 
tration have  retained  the  assets,  and  distributed  them  according 
to  the  law  of  the  domicil ;  and  others,  in  which  they  have  been 
transmitted  to  the  principal  and  original  jurisdiction  for  final 
action.  Harvey  v.  Richards,  i  Mason,  391.  Richards  v.  Dutch, 
8  Mass.  R.  506.     Da:i'es  v.  Boylston,  9  Mass.  R.  355. 

We  do  not  think  it  to  be  a  legal  consequence,  because  distri- 
bution should  be  made  according  to  the  law  of  the  domicil.  that 
the  assets  should  be  transmitted  for  distribution ;  the  courts  of 
the  ancillary  jurisdiction  may  distribute  them.  Stctrns  v.  Ca\- 
lord,  II  Mass.  R.  256.  Da:i'cs  v.  Heath  &  al.  3  Pick.  128.  Bruce 
V.  Bruce,  2  Bos.  &  Pull.  229.  Balfour  v.  Scott,  6  Bro.  Pari.  Cas. 
550.  Hog  V.  Lashley,  Id.  577.  Drununond  v.  Drumniond,  Iil. 
601.     Somcrville  v.  Sovierville,  16  Ves.  791. 

But  it  seems  now  to  be  settled,  that  the  power  of  the  court 
granting  the  ancillary  administration  is  a  discretionary  one,  and 


552  PRIVATE    INTERNATIONAL    LAW. 

should  depend  for  its  exercise  upon  the  circumstances  and  equity 
of  each  case.  This  is  a  sahitary  principle,  and  can  work  no 
harm ;  but  in  its  application,  the  citizens  of  the  state  of  the  ancil- 
lary administration  and  their  rights,  are  not  alone  to  be  regarded, 
but  also  the  rights  of  all  interested.  Han'ey  v.  Richards,  i 
Mason,  381.  Dazves  v.  Head,  3  Pick.  128.  Topham  v.  Chap- 
man, I  Rep.  Const.  Court,  S.  C.  292.  2  Kent's  Com.  Lect.  27- 
Sto.  Conf.  L.  424. 

We  see  no  good  reason  to  be  dissatisfied  with  the  application 
of  this  principle  and  the  exercise  of  this  discretion,  by  the  court 
of  probate,  in  the  decree  appealed  from.  The  original  adminis- 
tration was  granted,  by  a  court  in  a  sister  state  near  by ;  and 
within  one  or  two  days'  reach  of  the  appellant,  who  represents 
the  only  person  interested  in  the  estate  here !  All  the  other  inter- 
ested parties — and  there  were  several  of  them — resided  in  the 
state  of  Vermont,  or  elsewhere,  where  they  could,  with  equal 
convenience,  protect  their  interests,  and  receive  their  portions  of 
the  distributed  estate,  as  if  the  distribution  had  been  made  by  the 
court  of  probate  for  the  district  of  Norfolk.  A  greater  incon- 
venience and  expense  has  been  avoided,  by  the  transmission  of 
the  money  to  Vermont  for  final  distribution,  than  if  it  had  been 
retained  here.  And  still  we  do  not  say,  that  we  would,  even 
under  the  circumstances  of  this  case,  have  reversed  an  order  of 
distribution,  if  made  by  the  court  of  probate  here. 

2.  The  objection  to  the  allowance  of  forty-one  dollars  to  the 
administrator,  for  payment  of  a  debt  due  from  the  estate  to 
Michael  F.  Mills,  Esq.,  and  the  appeal  from  the  order  making 
that  allowance,  is  frivolous. 

The  estate  owed  the  debt,  and  the  administrator  has  satisfied 
it,  by  substituting  his  own  private  responsibility,  which  the  credi- 
tor has  received  as  payment  in  full. 

The  superior  court  is  advised,  that  the  orders  and  decrees  of 
the  court  of  probate  should  be  affirmed. 


TESTAMENTARY    SUCCESSION.  553 

TESTAMENTARY  SUCCESSION. 

MOULTRIE  V.  HUNT,  1861. 

[23  N.  Y.  394] 

1.  Validity     of    Will     of     Personal       3.  Validity  of  Will  of  Real   Estate. 

Property.  4.  Formalities,  Capacity,  and  Inter- 

2.  Formalities,  Capacity,  and  Inter-  pretation  of  Will  of  Real   Es- 

pretation  of  Will   of   Personal  tate. 

Property. 

Appeal  from  the  Supreme  Court.  Application  was  made 
in  April,  1856,  to  the  Surrogate  of  the  county  of  New  York,  for 
the  issuing  of  a  commission  to  take  proofs  of  the  execution  in 
Charleston.  South  Carolina,  of  an  alleged  will  of  Benjamin  F. 
Hunt,  who,  it  was  averred  in  the  petition,  had  died  in  the  city  of 
New  York,  having  his  residence  and  leaving  his  personal  prop- 
erty there.  The  commission  was  issued ;  and  the  evidence  taken 
under  it  established  the  fact  that  Mr.  Hunt,  in  August,  1849, 
being  then  a  citizen  of  South  Carolina,  executed  under  his  hand 
and  seal  an  instrument  purporting  to  be  a  will  of  real  and  per- 
sonal estate.  It  was  attested  at  his  request  by  three  witnesses,  but 
Mr.  Hunt  did  not  state  to  the  witnesses  the  nature  of  the  paper 
which  he  requested  them  to  attest.  The  Surrogate  made  a  decree 
admitting  the  will  to  probate,  which,  on  appeal  by  one  of  the 
next  of  kin,  was  affirmed  by  the  Supreme  Court  at  general  term 
in  the  first  district,  and  an  appeal  was  thereupon  taken  to  this 
court. 

Denio,  J.  One  of  the  requisites  to  a  valid  will  of  real  or 
personal  property,  according  to  the  Revised  vStatutes,  is,  that  the 
testator  should,  at  the  time  of  subscribing  it,  or  at  the  time  of 
acknowledging  it,  declare,  in  the  presence  of  at  least  two  attest- 
ing witnesses,  tliat  it  is  his  last  will  and  testament.  (2  R.  S., 
p.  63,  §40.)  The  will  which  the  Surrogate  of  New  York  ad- 
mitted to  probate,  by  the  order  under  review,  was  defectively 
executed  in  this  particular — the  only  statement  which  the  alleged 
testator  made  to  the  witnesses  being  that  it  was  his  signature  and 
seal  which  was  affixed  to  it.  It  was  correctly  assumed  by  the 
Surrogate  in  his  opinion,  and  by  the  Supreme  Court  in  pronounc- 
ing its  judgment  of  affirmance,  that  the  instrument  could  not  be 
sustained  as  a  will  under  the  provisions  of  the  Revised  Statutes, 
l^nt  that,  if  it  could  be  upheld  at  all,  it  nuist  be  as  a  will  executed 


/  /   *-! 


I 


.ft^^- 


554  PRIVATE    INTERNATIONAL    LAW. 


'^'^■3?/'^/^^ 


in  another  State,  according  to  the  law  prevaiUng  there ;  and,  upon 
that  view,  it  was  estabHshed  by  both  these  tribunals  as  a  valid 
testament.  In  point  of  fact  tlie  instrument  was  drawn,  signed 
and  attested  at  Charleston,  in  South  Carolina,  where  such  a 
declaration  of  the  testator  to  the  witnesses,  as  has  been  men- 
tioned, is  not  required  to  constitute  a  valid  execution  of  a  will. 
Mr.  Hunt,  the  alleged  testator,  resided  at  that  time  in  Charleston ; 
but.  some  time  before  his  death,  he  removed  to  the  city  of  New 
York,  and  he  continued  to  reside  in  that  city  from  that  time  until 
his  death.  The  will  was  validly  executed,  according  to  the  laws 
of  South  Carolina. 

Although  the  language  of  our  statute,  to  which  reference  has 
been  made,  includes,  in  its  generality,  all  testamentary  disposi- 
tions, it  is,  nevertheless,  true,  that  wills,  duly  executed  and  taking 
effect  in  other  States  and  countries  according  to  the  laws  in 
force  there,  are  recognized  in  our  courts  as  valid  acts,  so  far  as 
concerns  the  disposition  of  personal  property.  {Parsons  v. 
Lyman,  20  N.  Y.,  T03.)  This  is  according  to  the  law  of  inter- 
national comity.  Every  country  enacts  such  laws  as  it  sees  fit 
as  to  the  disposition  of  personal  property  by  its  own  citizens,  either 
inter  vivos  or  testamentary;  but  these  laws  are  of  no  inherent 
obligation  in  anv  other  countrv.  Still,  all  civilized  nations  agree, 
as  a  general  rule,  to  recognize  titles  to  movable  property  created 
in  other  states  or  countries  in  pursuance  of  the  laws  existing 
there,  and  by  parties  domiciled  in  such  states  or  countries.  This 
law  of  comity  is  parcel  of  the  municipal  law  of  the  respective 
countries  in  which  it  is  recognized,  the  evidence  of  which,  in  the 
absence  of  domestic  legislation  or  judicial  decisions,  is  frequently 
sought  in  the  treatises  of  writers  on  international  law,  and  in 
certain  commentaries  upon  the  civil  law  which  treat  more  or  less 
copiously  upon  subjects  of  this  nature. 

If  the  alleged  testator  in  the  present  case  had  continued  to 
be  an  inhabitant  of  South  Carolina  until  his  death,  we  should, 
according  to  this  principle,  have  regarded  the  will  as  a  valid 
instrument,  and  it  would  have  been  the  duty  of  our  probate 
courts  to  have  granted  letters  testamentary  to  the  executors 
named  in  it.  The  statute  contemplates  such  a  case  when  it  pro- 
vides for  the  proving  of  such  wills  upon  a  commission  to  be 
issued  by  the  Chancellor,  and  for  granting  letters  upon  a  will 
admitted  to  probate  in  another  State.  (2  R.  S.,  p.  67,  §§  68,  69.) 
These  provisions  do  not  profess  to  define  under  what  circum- 
stances a  will  made  in  a  foreign  jurisdiction,  not  in  conformity 


I Jl  //.> 


TESTAMENTARY    SUCCESSION.  555 

with  our  laws,  shall  be  valid.     It  only  assumes  that  such   wills 
may  exist,  and  provides  for  their  proof. 

The  question  in  the  present  case  is,  whether,  inasmuch  as 
the  testator  changed  his  domicil  after  the  instrument  was  signed 
and  attested,  and  was,  at  the  time  of  his  death,  a  resident  citizen 
of  this  State,  he  can,  within  the  sense  of  tlie  law  of  comity,  be 
said  to  have  made  his  will  in  South  Carolina.  The  paper  which 
was  signed  at  Charleston  had  no  effect  upon  the  testator's  prop- 
erty while  he  remained  in  that  State,  or  during  his  lifetime. 
It  is  of  the  essence  of  a  will  that,  until  the  testator's  death,  it  is 
am.buiatory  and  revocable.  No  rights  of  property  or  powers  over 
property,  were  conferred  upon  any  one  by  the  execution  of  this 
instrument;  nor  were  the  estate,  interest  or  rights  of  the  testator 
in  his  property  in  any  way  abridged  or  qualified  by  that  act.  The 
transaction  was,  in  its  nature,  inchoate  and  provisional.  It  pre- 
scribed the  rules  by  which  his  succession  should  be  governed, 
provided  he  did  not  change  his  determination  in  his  lifetime.  I 
think  sufficient  consideration  was  not  given  to  this  peculiarity  of 
testamentary  dispositions,  in  the  view  which  the  learned  Surro- 
gate took  of  the  case.  According  to  his  opinion,  a  will,  when 
signed  and  attested  in  conformity  with  the  law  of  the  testator's 
domicil,  is  a  "consummate  and  perfect  transaction."  In  one  sense 
it  is,  no  doubt,  a  finished  affair;  but  I  think  it  is  no  more  con- 
summate than  a  bond  would  be  which  the  obligor  had  prepared 
for  use  by  signing  and  sealing,  but  had  kept  in  his  own  possession 
for  future  use.  The  cases,  I  concede,  are  not  entirely  parallel ; 
for  a  will,  if  not  revoked,  takes  effect  by  the  death  of  the  testator, 
which  must  inevitably  happen  at  some  time,  without  the  per- 
formance of  any  other  act  on  his  part,  or  the  will  of  any  other 
party ;  while  the  uttering  of  a  written  obligation,  intended  to 
operate  Inter  z'k'os,  requires  a  further  volition  of  the  party  to  be 
bound,  and  the  intervention  of  another  party  to  accept  a  delivery, 
to  give  it  vitality.  But.  until  one  or  the  other  of  these  circum- 
stances— namely,  the  death,  in  the  case  of  a  will,  or  the  delivery, 
where  the  instrument  is  an  oliligation — occur,  the  instrument  is 
of  no  legal  significancy.  In  the  case  of  a  will  it  re(|uires  the 
death  of  the  party,  and  in  that  of  a  bond  a  delivery  of  the  instru- 
m.ent,  to  indue  it  with  any  legal  operation  or  effect.  The  existence 
of  a  will,  d^\\y  executed  and  attested,  at  one  pericnl  during  a 
testator's  lifetime,  is  a  circumstance  of  no  legal  importance.  He 
must  die  leaving  such  a  will,  or  the  case  is  one  of  intestacy. 
(Betts  V.  Jackson,  6  Wend.,  1 73-181.)       The  provisions  of  a  will 


556  PRIVATE     INTERNATIONAL    LAW. 

made  before  the  enactment  of  the  Revised  Statutes,  and  in  entire 
conformity  with  the  law  as  it  then  existed,  but  which  took  effect 
by  the  death  of  the  testator  afterwards,  were  held  to  be  annulled 
by  certain  enactments  of  these  Statutes  respecting  future  estates, 
notwithstanding  the  saving  contained  in  the  repealing  act,  to  the 
effect  that  the  repeal  of  any  statutory  provision  shall  not  affect 
any  act  done,  &c.,  previous  to  the  time  of  the  repeal.     {De  Peystcr 
V.  Clendming,  8  Paige,  295 ;  2  R.  S.,  p.  779,  §  5 ;  Bishop  v.  Bishop, 
4  Hill,   138.)     The  Chancellor  declared  that  the  trusts  and  pro- 
visions of  the  will  must  depend  upon  the  law  as  it  was  when  it 
took  effect  by  the  death  of  the  testator;  and  the  Supreme  Court 
affirmed  that  doctrine.     There  is  no  distinction,  in  principle,  be- 
tween general  acts  bearing  upon  testamentary  provisions,  like  the 
statute  of  uses   and   trusts,  and   particular  directions   regarding 
the  formalities  to  be  observed  in  authenticating  the  instrument ; 
and  I  do  not  doubt  that  all  the  wills  executed  under  the  former 
law,  and   which   failed  to  conform  to  the   new   one,   where  the 
testator  survived  the  enactment  of  the  Revised  Statutes,  would 
have  been  avoided,  but  for  the  saving  in  the   70th   section,  by 
which  the  new  statute  was  not  to  impair  the  validity  of  the  execu- 
tion of  a  will  made  before  it  took  effect.     (2  R.  S.,  p.  68.)     If,  as 
has  been  suggested,  a  will  was  a  consummated  and  perfect  trans- 
action before  the   death  of  the  testator,   no  change  in  the   law 
subsequently  made  would  affect  it — the  rule  being,  that  what  has 
been  validly  done  and  perfected  respecting  private  rights  under 
an  existing  statute  is  not  affected  by  a  repeal  of  the  law.     (Reg. 
v.  The  Inhabitants  of  Denton,   14  Eng.  L.  Eq.,   124,  per  Lord 
Campbell,  Ch.  J.) 

If  then  a  will  legally  executed  under  a  law  of  this  State, 
would  be  avoided  by  a  subsequent  change  made  in  the  law,  before 
the  testator's  death,  which  should  require  different  or  additional 
formalities,  it  would  seem  that  we  could  not  give  effect  to  one 
duly  made  in  a  foreign  state  or  country,  but  which  failed  to  con- 
form to  the  laws  of  this  State,  where,  at  the  time  of  its  taking 
effect  by  the  testator's  death,  he  was  no  longer  subject  to  the 
foreign  law,  but  was  fully  under  the  influence  of  our  own  legal 
institutions.  The  question  in  each  case  is,  whether  there  has 
been  an  act  done  and  perfected  under  the  law  governing  the 
transaction.  If  there  has  been,  a  subsequent  change  of  residence 
would  not  impair  the  validity  of  the  act.  We  should  be  bound 
to  recognize  it  by  the  law  of  comity,  just  as  we  would  recognize 
and  give  validity  to  a  bond  reserving  eight  per  cent  interest, 


TESTAMENTARY    SUCCESSION.  557 

executed  in  a  State  where  that  rate  is  allowed,  or  a  transfer  of 
property  which  was  required  to  be  under  seal,  but  which  had  in 
fact  been  executed  by  adding-  a  scroll  to  the  signer's  name  in  a 
State  where  that  stood  for  a  seal  or  the  like.  An  act  done  in 
another  State,  in  order  to  create  rights  which  our  courts  ought 
to  enforce  on  the  ground  of  comity,  must  be  of  stich  a  character 
that  if  done  in  this  State,  in  conformity  with  our  laws,  it  could 
not  be  constitutionally  impaired  by  subsequent  legislation.  An 
executed  transfer  of  property,  real  or  personal,  is  a  contract 
within  the  protection  of  the  Constitution  of  the  United  States, 
and  it  creates  rights  of  property  which  our  own  Constitution 
guarantees  against  legislative  confiscation.  Yet  I  presume  no 
one  would  suppose  that  a  law  prescribing  new  qualifications  to 
the  right  of  devising  or  bequeathing  real  or  personal  property, 
or  new  regulations  as  to  the  manner  of  doing  it,  and  making  the 
law  applicable  in  terms  to  all  cases  where  wills  had  not  already 
taken  eflect  by  the  death  of  the  testator,  would  be  constitution- 
ally abjectionable. 

I  am  of  opinion  that  a  will  has  never  been  considered,  and 
that  it  is  not  by  the  law  of  this  State,  or  the  law  of  England,  a 
perfected  transaction,  so  as  to  create  rights  which  the  courts  can 
recognize  or  enforce,  until  it  has  become  operative  by  the  death 
of  the  testator.  As  to  all  such  acts  which  remain  thus  inchoate, 
they  are  in  the  nature  of  unexecuted  intentions.  The  author  of 
them  mav  change  his  mind,  or  the  State  may  determine  that  it 
is  inexpedient  to  allow  them  to  take  effect,  and  require  them  to 
be  done  in  another  manner.  If  the  law-making  power  may  do 
this  by  an  act  operating  upon  wills  already  executed,  in  this  State, 
it  would  seem  reasonable  that  a  general  act.  like  the  statute  of 
vrills,  contained  in  the  Revised  Statutes,  would  apply  itself  to 
all  wills  thereafter  to  take  effect  by  the  death  of  the  testator  in 
this  State,  wherever  they  might  be  made ;  and  that  the  law  of 
comity,  which  has  been  spoken  of,  would  not  operate  to  give 
validity  to  a  will  executed  in  another  State,  but  which  had  no  legal 
effect  there  until  after  the  testator,  by  coming  to  reside  here, 
had  fullv  subjected  himself  to  our  laws;  nor  then,  until  his  testa- 
mentary act  had  taken  effect  by  his  death. 

It  may  be  that  this  conclusion  would  not.  in  all  cases,  con- 
form to  the  expectations  of  testators.  It  is  quite  possible  that  a 
person  coming  here  from  another  State,  who  had  executed  his 
will  before  his  removal,  according  to  the  law  of  his  fomier  resi- 
dence, might  rely  upon  the  validity  of  that  act ;  atid  would  die 


558  PRIVATE     INTERNATIONAL    LAW. 

intestate,  contrary  to  his  intention,  in  consequence  of  our  laws 
exacting  additional  formalities  with  which  he  was  unacquainted. 
But  it  may  be  also  that  a  well-informed  man,  coming  here  under 
the  same  circumstances,  would  omit  to  republish,  according  to 
our  laws,  his  will,  made  at  his  former  domicil,  because  he  had 
concluded  not  to  give  legal  effect,  in  this  jurisdiction,  to  the  views 
as  to  the  disposition  of  his  property  which  he  entertained  when 
it  was  executed.  The  only  practical  rule  is,  that  every  one  must 
be  supposed  to  know  the  law  under  which  he  lives,  and  conform 
his  acts  to  it.  This  is  the  rule  of  law  upon  all  other  subjects, 
and  I  do  not  see  any  reason  why  it  should  not  be  in  respect  to 
the  execution  of  wills. 

In  looking  for  precedents  and  juridical  opinions  upon  such 
a  question,  we  ought,  before  searching  elsewhere,  to  resort  to 
those  of  the  country  from  which  we  derive  our  legal  system,  and 
to  those  furnished  by  the  courts  and  jurists  of  our  own  country. 
It  is  only  after  we  have  exhausted  these  sources  of  instruction, 
without  success,  that  we  can  profitably  seek  for  light  in  the  works 
of  the  jurists  of  the  continent  of  Europe. 

The  principle  adopted  by  the  Surrogate  is  that,  as  to  the 
formal  requirements  in  the  execution  of  a  will,  the  law  of  the 
country  where  it  was  in  fact  signed  and  attested  is  to  govern, 
provided  the  testator  was  then  domiciled  in  such  country,  though 
he  may  have  afterwards  chinged  his  domicile,  and  have  been  at 
his  death  a  domiciled  resident  of  a  country  whose  laws  re- 
quired different  formalities.  Upon  an  attentive  examination  of 
the  cases  which  have  been  adjudged  in  the  English  and  Ameri- 
can courts,  I  do  not  find  anything  to  countenance  this  doctrine; 
but  much  authority,  of  quite  a  different  tendency.  The  result  of 
the  cases,  I  think,  is,  that  the  jurisdiction  in  which  the  instru- 
ment was  signed  and  attested,  is  of  no  consequence,  but  that  its 
validity  must  be  determined  according  to  the  domicil  of  the  tes- 
tator at  the  time  of  his  death.  Thus,  in  Grattan  v.  Appleton  (3 
Story's  R.,  755),  the  alleged  testamentary  papers  were  signed 
in  Boston,  where  the  assets  were,  and  the  testator  died  there, 
but  he  was  domiciled  in  the  British  province  of  New  Brunswick. 
The  provincial  statute  required  two  attesting  witnesses,  but  the 
alleged  will  was  unattested.  The  court  declared  the  papers  in- 
valid, Judge  Story  stating  the  rule  to  be  firmly  established,  that 
the  law  of  the  testator's  domicil  was  to  govern  in  relation  to  his 
personal  property,  though  the  will  might  have  been  executed  in 
another  state  or  country  where  a  different  rule  prevailed.     The 


TESTAMENTARY    SUCCESSION.  559 

Judge  referred,  approvinoly,  to  Dcscsbats  v.  Bcrquier  ( i  Bin., 
336),  decided  as  long  ago  as  1808.  That  was  the  case  of  a  will 
executed  in  St.  Domingo  by  a  person  domiciled  there,  and  sought 
to  be  enforced  in  Pennsylvania,  where  the  effects  of  the  deceased 
were.  It  appeared  not  to  have  been  executed  according  to  thr 
laws  of  St.  Domingo,  though  it  was  conceded  that  it  would  have 
been  a  good  will  if  executed  by  a  citizen  of  Pennsylvania.  The 
alleged  will  was  held  to  be  invalid.  In  the  opinion  delivered  by 
Chief  Justice  Tilghman,  the  cases  in  the  English  ecclesiastical 
courts,  and  the  authorities  of  the  writers  on  the  laws  of  nations, 
were  carefully  examined.  It  was  declared  to  be  settled,  that  the 
succession  to  the  personal  estate  of  an  intestate  was  to  be  regu- 
lated according  to  the  law  of  the  country  in  which  he  was  a 
domiciliated  inhabitant  at  the  time  of  his  death,  and  that  the  same 
mle  prevailed  w  ith  respect  to  last  wills.  I  have  referred  to  these 
cases  from  respectable  courts  in  the  United  States,  because  their 
judgments  are  more  familiar  to  the  bar  than  the  reports  of  the 
spiritual  courts  in  England.  Piut  these  decisions  are  fully  sus- 
tained by  a  series  of  well  considered  judgments  of  these  courts- 
(De  Bonnc7'al  v.  De  Bonneval,  i  Curt,  856;  Curling  v.  Thornton, 
2  Addams,  6;  Stanley  v.  Benics,  3  Hag.,  373;  Countess  Ferraris 
v.  Hertford.  3  Curt,  468.)  It  was  for  a  time  attempted  to  qualify 
the  doctrine,  in  cases  where  the  testator  was  a  British  subject  who 
had  taken  up  his  residence  and  actual  domicil  in  a  foreign  coun- 
try, by  the  principle  that  it  was  legally  impossible  for  one  to 
abjure  the  country  of  his  birth,  and  that  therefore  such  a  person 
could  not  change  his  domicil-;  but  the  judgment  of  the  High 
Court  of  Delegates,  in  Stanley  v.  Bernes,  finally  put  the  question 
at  rest.  In  that  case  an  Englishman,  domiciled  in  Portugal  and 
resident  in  the  Portuguese  Island  of  Maderia,  made  a  will  and 
four  codicils,  all  of  which  were  executed  according  to  the  Portu- 
guese law,  except  the  last  two  codicils,  and  they  were  all  executed 
so  as  to  be  valid  wills  by  the  law  of  England,  if  it  governed  the 
case.  Letters  were  granted  upon  the  will  and  two  first  codicils, 
but  the  other  codicils  were  finally  pronounced  against.  The 
Reporter's  note  expresses  the  result  in  these  words:  "If  a  tes- 
tator (though  a  British  subject)  be  domiciled  abroad,  he  must 
conform,  in  his  testamentary  acts,  to  the  formalities  required  by 
the  lex  douiicilii."  See.  also.  Somcrrillc  v.  Somervillc,  5  Ves.. 
750:  and  Price  v.  Deichnrsr.  8  SiniiMis.  270.  in  the  English  Court 
of  Chancery.) 

It  is  true  that  none  of  these  decisions  present  the  case  of  a 


560  PRIVATE     INTERNATIONAL    LAW. 

change  of  domicil,  after  the  signing  and  attesting  of  a  will.  They 
are,  notwithstanding,  fully  in  point,  if  I  have  taken  a  correct 
view  of  the  nature  and  effect  of  a  will  during  the  lifetime  of  the 
testator.  But  the  remarks  of  judges  in  deciding  the  cases,  and 
the  understanding  of  the  Reporters  clearly  show,  that  it  is  the 
domicil  of  the  testator  at  the  time  of  his  death,  which  is  to  be 
considered  in  seeking  for  the  law  which  is  to  determine  the 
validity  of  the  will.  Thus,  in  De  Bonneval  v.  De  Bonncval,  the 
question  was  upon  the  validity  of  the  will  executed  in  England, 
of  a  French  nobleman  who  emigrated  in  1792,  and  died  in  Eng- 
land in  1836.  Sir  Herbert  Jenner  states  it  to  have  been  settled 
by  the  case  of  Stanley  v.  Bernes,  that  the  law  of  the  place  of  the 
domicil,  and  not  the  lex  loci  rei  sitcc  governed  "the  distribution 
of,  and  succession,  to  personal  property  in  testacy  or  intestacy." 
The  Reporters'  note  is,  that  the  validity  of  a  will  "is  to  be  de- 
termined by  the  law  of  the  country  where  the  deceased  was 
domiciled  at  his  death." 

Nothing  is  more  clear  than  that  it  is  the  law  of  the  country 
where  the  deceased  was  domiciled  at  the  time  of  his  death,  which 
is  to  regulate  the  succession  of  his  personalty  in  the  case  of  in- 
testacy. Judge  Story  says,  that  the  universal  doctrines  were 
recognized  by  the  common  law,  is,  tJiat  the  succession  to  per- 
sonal property,  ah  intestato,  is  governed  exclusively  by  the  law  of 
the  actual  domicil  of  the  int'^state  at  the  time  of  his  death.  (Conf. 
Laws,  §481.)  It  would  be  plainly  absurd  to  fix  upon  any  prior 
domicil  in  another  country.  The  one  which  attaches  to  him  at  the 
,  instant  when  the  devolution  of  property  takes  place,  is  manifestly 
the  only  one  which  can  have  anything  to  do  with  the  question. 
Sir  Richard  Pepper  Arden,  Master  of  the  Rolls,  declared,  in 
Somerville  v.  Somerville,  that  the  rule  was  that  the  succession 
to  the  personal  estate  of  an  intestate  was  to  be  regulated  by  the 
law  of  the  country  in  which  he  was  domiciled  at  the  time  of  his 
death,  without  any  regard  whatever  to  the  place  of  nativity,  or 
the  place  where  his  actual  death  happened,  or  the  local  situation  of 
his  effects. 

Now,  if  the  legal  rules  which  prevail  in  the  country  where 
the  deceased  was  domiciled  at  his  death,  are  those  which  are  to 
be  resorted  to  in  case  of  an  intestacy,  it  would  seem  reasonable 
that  the  laws  of  the  same  country  ought  to  determine  whether 
in  a  given  case  there  is  an  intestacy  or  not,  and  such  we  have 
seen  was  the  view  of  Chief  Justice  Tilghman.  Sir  Lancelot 
Shadwell,  Vice -Chancellor,  in  Price  v.  Deivhurst,  also  expressed 


TESTAMENTARY    SUCCESSION.  561 

the  same  view.  He  said,  "I  apprehend  that  it  is  now  clearly 
established  by  a  great  variety  of  cases  which  it  is  not  necessary 
to  go  through  in  detail,  that  the  rule  of  law  is  this :  that  when  a 
person  dies  intestate,  his  personal  estate  is  to  be  administered 
according  to  the  law  of  the  country  in  which  he  was  domiciled  at 
the  time  of  his  death,  whether  he  was  a  British  subject  or  not; 
and  the  question  whether  he  died  intestate  or  not  must  be  de- 
termined by  the  lavj  of  the  same  country."  The  method  of  arriv- 
ing at  a  determination  in  the  present  case,  according  to  this  rule, 
is,  to  compare  the  evidence  of  the  execution  of  his  will  with  the 
requirements  of  the  Revised  Statutes.  Such  a  comparison  would 
show  that  the  deceased  did  not  leave  a  valid  will,  and  consequently 
that  he  died  intestate. 

Being  perfectly  convinced  that  according  to  the  principles  of 
the  common  law,  touching  the  nature  of  last  wills,  and  according 
to  the  result  of  the  cases  m  England  and  in  this  country  which 
have  been  referred  to,  the  will  under  consideration  cannot  be 
sustained,  I  have  not  thought  it  profitable  to  spend  time  in  col- 
lecting the  sense  of  the  foreign  jurists,  many  of  whose  opinions 
have  been  referred  to  and  copiously  extracted  in  the  able  opinion 
of  the  learned  Surrogate,  if  I  had  convenient  access  to  the  neces- 
sary books,  which  is  not  the  case.  1  understand  it  to  be  conceded 
that  there  is  a  diversity  of  opinion  upon  the  point  under  con- 
sideration among  these  writers ;  but  it  is  said  that  the  authors  who 
assert  the  doctrine  on  which  1  have  been  insisting,  are  not  those 
of  the  highest  character,  and  that  their  opinions  have  been  criti- 
cised with  success  bv  M.  Felix,  himself  a  systematic  writer  of 
reputation  on  the  conflict  of  laws.  Judge  Story,  however,  who 
has  wrought  in  this  mine  of  learning  with  a  degree  of  intelli- 
gence and  industry  which  has  excited  the  admiration  of  English 
and  American  judges,  has  come  to  a  different  conclusion.  His 
language  is,  "but  it  may  be  asked,  what  will  be  the  eflfect  of  a 
change  of  domicil  after  a  will  or  testament  is  made,  of  personal 
or  movable  property,  if  it  is  valid  by  the  law  of  the  place  where 
the  party  was  domiciled  when  it  was  made,  and  not  valid  by  the 
law  of  his  domicil  at  the  time  of  his  death?  The  terms  in  which 
the  general  rule  is  laid  down  would  seem  sufficiently  to  establish 
the  principle  that  in  such  a  case  the  will  and  testament  is  void ; 
for  it  is  the  law  of  his  actual  domicil  at  the  time  of  his  death, 
and  not  the  law  of  his  domicil  at  the  time  of  his  making  his  will 
and  testament  of  personal  property  which  is  to  govern."  (§473.) 
He  then  quotes  at  length  the  language  of  John  Voet  to  the  same 
36 


562  PRIVATE    INTERNATIONAL    LAW. 

general  effect.  It  must,  however,  be  admitted  that  the  examples 
put  by  that  author,  and  quoted  by  Judge  Story,  relate  to  testa- 
mentary capacity  as  determined  by  age,  and  to  the  legal  ability 
of  the  legatees  to  take,  and  not  to  the  form  of  executing  the 
instrument.  And  the  Surrogate  has  shown,  by  an  extract  from 
the  same  author,  that  a  will  executed  in  one  country  according 
to  the  solemnities  there  required,  is  not  to  be  broken  solely  by  a 
change  of  domicil  to  a  place  whose  laws  demand  other  solemnities- 
Of  the  other  jurists  quoted  by  the  Surrogate,  several  of  them 
lay  down  rules  diametrically  opposite  to  those  which  confessedly 
prevail  in  this  country  and  in  England.  Thus,  Tollier,  a  writer 
on  the  civil  law  of  France,  declares  that  the  form  of  testaments 
does  not  depend  upon  the  law  of  the  domicil  of  the  testator,  but 
upon  the  place  where  the  instrument  is  in  fact  executed ;  and 
Felix,  Malm  and  Pothier  are  quoted  as  laying  down  the  same 
principle.  But  nothing  is  more  clear,  upon  the  English  and 
Am.erican  cases,  than  that  the  place  of  executing  the  will,  if  it  is 
different  from  the  testator's  domicil,  has  nothing  to  do  with  de- 
termining the  proper  form  of  executing  and  attesting.  In  the  case 
referred  to  from  Story's  Reports,  the  will  was  executed  in  Boston, 
but  was  held  to  be  invalid  because  it  was  not  attested  as  required 
by  a  provincial  statute  of  New  Brunswick,  which  was  the  place 
of  the  testator's  domicil.  If  the  present  appeal  was  to  be  deter- 
mined according  to  the  civil  law,  I  should  desire  to  examine  the 
authorities  more  fully  than  I  have  been  able  to  do ;  but  consider- 
ing it  to  depend  upon  the  law  as  administered  in  the  English 
and  American  courts,  and  that  according  to  the  judgment  of  these 
tribunals  it  is  the  law  of  the  domicil  of  the  testator  at  the  time 
of  his  death  that  is  to  govern,  and  not  that  of  the  place  where  the 
paper  happened  to  be  signed  and  attested,  where  that  is  different 
from  his  domicil  at  the  time  of  his  decease,  I  cannot  doubt  that 
the  Surrogate  and  Supreme  Court  fell  into  an  error  in  establishing 
the  will. 

I  have  not  overlooked  an  argument  which  has  been  addressed 
lo  us,  based  upon  certain  amendments  of  the  Revised  Statutes, 
contained  in  chapter  320  of  the  act  of  1830.  The  revised  code 
of  the  State,  as  originally  enacted,  had  omitted  to  make  provision 
for  the  proving  of  wills,  where  the  attesting  witnesses  resided 
out  of  the  Slate,  and  their  attendance  here  could  not  be  pro- 
cured. The  Surrogates'  Courts,  to  which  they  committed  the 
proof  of  v/ills  of  real  and' personal  estates,  being  tribunals  of 
special  jurisdiction,  and  having  no  common  law  powers  like  the 


TESTAMENTARY    SUCCESSION.  563 

Supreme  Court,  could  not  issue  a  conitnission  in  such  cases,  anfl 
hence  there  might  often  be  a  failure  of  justice.  It  might  happen, 
in  various  ways,  that  the  witnesses  to  a  will  would  reside  out  of 
the  jurisdiction  of  this  State.  If  the  will  were  executed  here  by 
a  resident  citizen,  in  the  usual  manner,  the  witnesses  might 
change  their  residence  and  live  in  some  other  state  or  country, 
when  it  came  to  be  proved ;  or  it  might  be  executed  out  of  the 
State  according  to  the  forms  prescribed  by  our  statute  of  wills, 
by  a  resident  of  this  State  who  was  temporarily  abroad.  In  either 
case  the  will  would  be  perfectly  valid,  though  the  Surrogate 
having  iurisdiction  would  be  unable  to  admit  it  to  probate  for 
want  of  power  to  cause  the  testimony  to  be  taken  and  returned. 
To  remedy  this  inconvenience,  five  new  sections  were  introduced, 
in  1830,  by  way  of  amendment,  to  the  title  of  the  Revised  Statutes, 
respecting  the  proof  of  wills,  numbered  from  63  to  67,  inclusive. 
The  provision  which  they  make  is  limited  to  the  case  of  "a  will 
dulv  executed  according  to  the  laws  of  this  State,  where  the  wit- 
nesses  to  the  same  reside  out  of  the  jurisdiction  of  this  State ;" 
and  in  regard  to  such  wills,  it  is  enacted,  that  they  may  be  proved 
by  means  of  a  commission  issued  by  the  Qiancellor  upon  the 
application  of  any  person  interested ;  and  detailed  directions  are 
given  respecting  the  return  of  the  proof,  the  allowance  of  the  will 
and  the  record  of  it  in  the  office  of  the  Surrogate  having  juris- 
diction. 

But.  thus  far,  the  proof  of  a  will  made  in  a  foreign  jurisdic- 
tion, according  to  the  laws  of  such  jurisdiction,  and  taking  effect 
there  by  the  death  of  the  testator,  was  left  unprovided  for.  Such 
wills  are  perfectly  valid  as  to  personal  assets  in  this  State,  as  was 
shown  in  Parsons  v.  Lyvian.  We  recognize  the  foreign  will, 
according  to  the  comity  of  nations,  just  as  we  do  the  rules  of 
distribution  and  of  inheritance  of  another  country  when  operat- 
ing upon  a  domiciled  citi7:en  of  such  country  who  has  died  there, 
leaving  assets  in  this  State.  Then,  as  to  the  proof  of  such  wills, 
the  section  following  those  just  mentioned  provides  for  the  case  in 
these  words:  "Wills  of  personal  estate,  duly  executed  by  persons 
residing  out  of  the  State,  according  to  the  laws  of  the  state  or 
country  in  which  the  same  were  made,  may  be  proved  under  a 
commission  to  be  issue  by  the  Chancellor,  and  when  so  proved 
may  be  established  and  transmitted  to  the  Surrogate  having  juris- 
diction," &c.  (§68.)  The  remainder  of  the  section  provides 
for  the  case  of  such  a  foreign  will  which  has  been  proved  in  the 
foreign  jurisdiction.    Letters  testamentary  arc  to  be  issued  in  such 


564  PRIVATE    INTERNATIONAL    LAW. 

cases  upon  the  production  of  an  authenticated  copy  of  the  will. 
It  is  clearly  enough  implied,  perhaps,  by  the  language  of  this 
section,  that  the  will,  to  be  proved  and  established  under  its  pro- 
visions, and  which  is  allowed  to  be  executed,  as  to  assets  in  this 
State,  must  be  a  legal  will  according  to  the  law  of  the  testator's 
domicil  in  which  it  was  executed;  but,  for  abundant  caution,  a 
section  is  added  to  the  effect  that  "no  will  of  personal  estate, 
made  out  of  this  State,  by  a  person  not  being  a  citizen  of  this 
State,  shall  be  admitted  to  probate  under  either  of  the  preceding 
provisions  unless  such  will  shall  have  been  executed  according  to 
the  laws  of  the  state  or  country  in  which  the  same  was  made." 
(§69.)     Chancellor  Walworth  appears  to  have  understood  the 
words,  "a  citizen  of  this  State,"'  as  used  in  this  section,  to  refer  to 
political  allegiance;  and,  "in  the  matter  of  Roberts'  will,"  he  held 
that  the  will  then  in  question,  executed  in  the  island  of  Cuba,  and 
which  had  been  proved  under  a  commission,  and  had  been  shown 
to  be  executed  according  to  the  laws  of  Spain,  was  a  legal  will, 
though  the  testator  was  a  resident  of  this  State  at  the  time  of  his 
death.     But  he  put  the  decision  on  the  ground  that  the  testator 
was  a  foreigner,  and  not  a  citizen,  though  domiciled  here,  and 
upon  a  verbal  construction  of  the  69th  section.     But  Mr.  Hunt, 
the  alleged  testator  in  the  will  now  in  question,  was  not  only  dom- 
iciled here,  but  he  was,  at  his  death,  a  citizen  of  this  State,  and, 
consequently,  the  section,  af  interpreted  by  the  Chancellor,  has 
no  application  to  the  case.     He,  however,  fully  admitted  the  rule 
of  law  to  be  as  T  have  stated  it,  in  cases  not  within  the  influence 
of  the  69th   section.     "The   provision   of  the   Revised   Statutes 
'  requiring  wills  of  personal  property  to  be  executed  in  the  presence 
of  two  witnesses,"  he  says,  "does  not  apply  to  wills  executed  out 
of  this  State  by  persons  domiciled  in  the  state  or  country  where 
the  will  is  made,  and  who  continue  to  be  thus  domiciled  at  the 
time  the  will  takes  effect  by  death."     "As  the  testator  resided 
in  this  State  at  the  time  of  his  death,  in  1837,  this  will  would  be 
valid  according  to  the  law  of  the  testator's  domicil  lichen  the  will 
took  effect  by  death,  if  he  had  been  a  citizen  at  that  time.     But, 
as  he  was  a  foreigner,  and  there  is  no  evidence  that  he  was  ever 
naturalized  here,  the  amendments  of  the  Revised  Statutes  of  1830, 
under  which  the  present  proceedings  are  instituted,  expressly  pro- 
hibit the  admitting  of  the  will  to  probate  by  a  decree  of  this 
court,  unless  it  was  also  duly  executed  according  to  the  laws  of 
the  country  where  it  was  actually  made."     But  for  this  case,  I 
should  have  been  of  the  opinion  that  the  words,  "a  citizen  of  this 


TESTAMENTARY    SUCCESSION.  505 

State,''  as  used  in  the  69th  section,  did  not  refer  to  political 
allegiance,  but  were  used  in  the  sense  of  a  demiciled  inhabitant 
of  this  State.  The  meaning  of  the  section  would  then  be,  that, 
if  a  person,  other  than  a  domiciled  inhabitant  of  this  State,  makes 
his  will  out  of  the  State,  it  must  be  executed  according  to  the  laws 
of  the  state  or  country  where  made,  or  it  cannot  be  admitted  to 
probate  here,  according  to  the  preceding  provisions  of  the  act. 
The  Chancellor  seems  to  me  to  have  taken  the  same  view  of  the 
statute  when  passing  upon  the  execution  of  the  will  of  Catherine 
Roberts.  (8  Paige,  519.)  He  says:  "The  statute,  in  express 
terms,  authorizes  a  will  of  personalty  executed  out  of  the  State, 
^V  a  person  iwt  domiciled  here,  to  be  admitted  to  probate,  pro- 
vided it  is  duly  executed  according  to  the  laws  of  the  state  or 
country  where  the  same  was  made ;  and  prohibits  all  other  foreign 
wills  from  being  admitted  to  probate,  under  the  special  provisions 
incorporated  into  the  statutes  of  April,  1830."  The  words,  "a 
person  not  domiciled  here,"  are  used  in  the  paraphrase  as  the 
equivalent  of  "a  person  not  being  a  citizen  of  this  State :"  and  I 
think  that  rendering  is  perfectly  correct.  The  provisions  of  the 
act  do  not,  in  my  opinion,  suggest  any  distinction  between  the 
place  where  a  will  is  actually  signed  and  attested  and  that  in 
which  it  takes  effect  by  the  death  of  the  testator.  They  are  in- 
tended to  provide  simply  for  the  case  of  the  will  of  a  person  domi- 
ciled out  of  the  State  which  it  is  desired  to  prove  here;  and  the 
statutory  mandate  is,  in  effect,  that  it  shall  not  be  established  here 
unless  it  was  executed  according  to  the  requirements  of  the 
foreign  law. 

The  will  under  immediate  consideration  was  not,  we  think, 
legally  executed ;  and  the  determination  of  the  Surrogate  and  of 
the  Supreme  Court,  which  gave  it  effect,  must  be  reversed. 

FORD  V.  FORD,  1887. 
[70  Wis.  19.] 

I.  The  validity  of  every  devise  or  disposition  of  real  estate 
by  will  must  be  governed  by  the  law  of  the  place  where  the  land 
is  situated,  and  this  includes  not  only  the  form  and  mode  of  the 
execution  of  the  will,  but  also  the  lawful  power  and  authority  of 
the  testator  to  make  such  disposition.  Story,  Contl.  Laws,  §  474. 
and  note ;  2  Greenl.  Ev.  §  670 ;  i  Redf.  Wills.  398.  subd.  8 ;  Robert- 
son V.  Pickrell,  109  U.  S.  608;  White  v.  Hoti'ard,  46  X.  V.  144. 
The  importance  of  this  proposition  in  considering  the  validity  of  a 
will  covering  lands  in  so  manv  different  states  will  be  appreciated 
bv  all. 


566  PRIVATE    INTERNATIONAL    LAW. 

2.  On  the  contrary,  although  not  as  well  defined,  nor  as 
extensively  enforced,  yet  the  authorities  clearly  support  the  prop- 
osition that  the  validity  of  a  bequest  or  disposition  of  personal 
property  by  last  will  and  testament  must  be  governed  by  the 
law  of  the  testator's  domicile  at  the  time  of  his  death,  and  this 
includes  not  only  the  form  and  mode  of  the  execution  of  the  will, 
but  also  the  lawful  power  and  authority  of  the  testator  to  make 
such  disposition;  and  especialW  is  this  true  where,  as  here,  the 
testator's  domicile  at  the  time  of  making  his  will  continues  to  be 
the  same  until  the  time  of  his  death.  Story,  Confl.  Laws,  §§  467, 
468;  Stetvart  v.  McMartin,  5  Barb.  438;  Moultrie  v.  Hunt,  23 

.  N.  Y.  394;  Nat  V.  Coons,  10  Mo.  543;  Dcsesbats  v.  Berquier, 
I  Bin.  336;  5".  C.  2  Am.  Dec.  448;  Somerville  v.  Somerville,  5 
Ves.  Jr.  730,  786;  Anstrnther  v.  Chalmer,  2  Sim.  i;  Price  v. 
Dewhiirst,  8  Sim.  279;  S.  C.  on  appeal,  4  Mylne  &  C.  76; 
Enohin  v.  Wylic,  8  Jur.  (N.  S.),  897;  6".  C.  10  H.  L.  Cas.  i; 
Crispin  v.  Doglioni,  8  J.  U.  R.  CM.  S.)  633 ;  6".  C.  on  appeal,  L.  R. 
I  H.  L.  App.  Cas.  301  ;  Eames  v.  Hacon,  L.  R.  16  Ch.  Div.  407 ; 
S".  C.  on  appeal,  L.  R.  18  Ch.  Div.  347.  This  is  not  shaken  by 
the  criticism  of  Lord  Westbury's  opinion  in  Enohin  v.  VVylie, 
supra,  by  the  Earl  of  Selborne,  L.  C,  in  Ewing  v.  Eimng,  L.  R. 
9  App.  Cas.  39. 

3.  The  same  rule,  as  to  the  law  of  the  testator's  domicile, 
governs  in  the  interpretation  or  construction  of  wills.  Stor}% 
Confl.  Laws,  §§  479a-479r;  Van  Steenzvyck  v.  Washburn,  59 
Wis.  510.  In  the  words  of  Mr.  Justice  Story:  "The  language 
of  wills  is  not  of  universal  interpretation,  having  the  same  precise 
import  in  all  countries  and  under  all  circumstances.  They  are 
supposed  to  speak  the  sense  of  the  testator  according  to  the  re- 
ceived laws  or  usages  of  the  country  where  he  is  domiciled,  by 
a  sort  of  tacit  reference,  unless  there  is  something  in  the  lan- 
guage which  repels  or  controls  such  a  conclusion."  Harrison  v. 
Nixon,  9  Pet.  504;  Troitcr  r.  Trotter,  4  Bligh  (N.  S.),  502; 
Enohin  v.  Wylie.  supra;  Chamberlain  v.  Napier,  L.  R.  15  Ch.  Div. 
614.  The  general  rule  is  the  same  respecting  real  estate,  when- 
ever the  object  is  merely  to  ascertain  the  meaning  and  intent  of 
the  testator  from  the  language  employed  in  the  will.  Ibid.;  2 
Greenl.  Ev.  §  671.^'' 

^*If  testator  changes  domicil  before  death,  law  of  domicil  at  time  will 
was  made  determines  interpretation.  Atkinson  v.  Staigg,  13  R.  I.  725-  A 
will  is  to  be  construed  according  to  the  law  of  the  place  of  his  domicil  in 
which  it  is  made.     Pord  v.  Ford.  80  Mich.  4J. 

In  the  case  of  Dcspard  v.  Churchill,  33  N.   Y.  192,  the  Court  said: 


EXECUTION    OF    POWER    IN    WILL.  567 

The  testator  had  his  doniicil  in  the  slate  of  California.  He  made  his  will 
there.  No  question  is  made  but  that  it  is  in  all  of  its  provisions  valid  by 
the  law  of  that  state.  It,  however.  l)y  its  terms,  disposes  of  certain  prop- 
erty in  this  state  and  by  provisions  which  are  invalid  here,  inasmuch  as 
they  run  counter  to  our  statute  law.  The  statute  law  here  referred  to 
embodies  the  policy  of  this  state  in  relation  to  perpetuities  and  accumula- 
tions. As  this  sovereignty  will  not  uphold  a  devise  or  bequest  by  one  of 
its  citizens  in  contravention  of  that  policy,  it  will  not  give  its  direct  aid 
to  sustain,  enforce  or  administer  here  such  a  devise  or  bequest  made  by  a 
citizen  of  another  sovereignty. 

In  Edgcrly  v.  Bush,  8i  N.  V.  igg,  the  Court  held  :  The  exercise  of 
comity  in  admitting  or  restraining  the  application  of  the  laws  of  another 
country  must  rest  in  sound  judicial  discretion,  dictated  by  the  circum- 
stances of  the  case. 


EXECUTION  OF  POWER  IN  WILL. 

COTTING  V.  DE  SARTIGES,   1892. 
[17  R.  I.  668,  16  L.  R.  A.  367.] 

Bill  in  Equity  for  instructions  and  for  the  administration 
of  a  trust. 

Newport.  March  28  1892.  Stiness,  J.  The  complainant, 
trustee  under  the  will  of  Alary  M.  Bourne,  late  of  Newport,  de- 
ceased, brings  this  bill,  practically  a  bill  for  instructions,  for  the 
distribution  of  the  trust  fund,  and  the  case  is  submitted  on  bill, 
answer,  and  proofs.  The  will  was  dated  September  30.  1879, 
and  admitted  to  probate  in  Newport  January  16,  1882.  The 
testatrix  bequeathed  one-sixth  of  her  residuary  estate  to  the  com- 
plainant in  trust  for  the  benefit  of  her  grandson,  Charles  Allen 
Thorndike  Rice,  during  his  life,  and  upon  his  decease  to  transfer 
and  pay  over  the  same  to  his  isstte,  if  he  should  leave  any.  as  he 
should  appoint  "by  will,  or  instrument  in  the  nature  thereof,  ex- 
ecuted in  the  presence  of  three  or  more  witnesses ;  and  if  he  leaves 
no  issue,  to  and  among  such  persons,  and  u|X)n  such  uses  and 
trusts,  as  he  shall  so  appoint ;"  and  in  default  of  such  appointment 
and  issue,  to  and  among  tho.se  who  should  then  be  her  heirs  at 
law. 

The  grandson  died  in  New  York.  Alay  16,  1889.  without 
isstte;  leaving  a  will  executed  in  England.  September  17.  1881, 
which  was  duly  probated  in  New  York,  where  he  was  domiciled 
at  his  death.  The  will  did  not  specifically  dispose  of  the  trust 
fund,  which  was  subject  to  Mr.  Rice's  apixMiitment.  nor  make  any 
mention  of  it      The  cimplainant  is  both  trustee  um'.er  the  will  of 


568  PRIVATE    INTERNATIONAL    LAW. 

Mrs.  Bourne  and  executor  of  the  will  of  Mr.  Rice.    In  the  latter 
capacity  he  claims  the  right  to  receive  and  distribute  the  fund,  as 
one  which  passes  by  appointment  to  the  legatees  under  Rice's  will. 
On  the  other  hand,  the  heirs  of  Mrs.  Bourne  contend  that  there  is 
a  default  of  appointment,  and  so,  under  the  will,  the  fund  goes  to 
them.    The  issue  now  raised,  therefore,  is  whether  there  has  been 
an   execution  of  the  power  by  the  general  residuary  clause  of  Mr. 
Rice's  will.    Upon  this  issue  cur  first  inquiry  must  be,  by  what  law 
the  execution  of  the  power  is  to  be  determined.     It  is  admitted 
that  both  in  England,  where  the  will  was  executed,  and  in  New 
York,  where  the  donee  of  the  power  was  domiciled,  there  are  stat- 
utory provisions  to  the  efifect  that  a  general  devise  or  bequest  will 
include  property  over  which  the  testator  has  power  of  appoint- 
ment, and  will  operate  as  an  execution  of  such  power,  unless  an 
intention  not  to  execute  the  power  shall  appear  by  the  will.     If, 
therefore,  the  question  is  to  be  determined  by  the  law  of  either 
England  or  New  York,  the  power  has  been  executed.    Clearly  the 
mere  accident  that  Mr.  Rice's  will  was  executed  in  England,  while 
he  was  temporarily  there  awaiting  a  steamer,  cannot  control  its 
operation  by  impressing  upon  it  the  law  of  the  place  where  it  was 
made.     It  was  neither  the  domicile  of  the  testator,  nor  the  situs 
of  the  property,  nor  the  forum  where  the  question  comes  for  de- 
termination.    Caulfield  v.  Sullivan,  85  N.  Y.  153.     The  property 
in  dispute  being  personal  p/operty,  which,  strictly  speaking,  has 
no  sihis,  the  question  must  be  decided  by  the  law  either  of  New 
York,  the  domicile  of  the  donee  of  the   power,  or  of  this  State,  the 
domicile  of  the  donor.     The  will  is  a  Rhode  Island  will;  it  dis- 
poses of  property  belonging  to  a  resident  of  Rhode  Island;  the 
trustee  under  the  will  is,  in  effect,  a  Rhode  Island  trustee,  and 
jurisdiction  over  the  trustee  and  the  fund  is  here.     The  fund  in 
question  belonged  to  Mrs.  Bourne,  and  never  belonged  to  Mr. 
Rice.    True,  he  had  the  income  from  it  for  life,  and  power  to  dis- 
pose of  it  at  death ;  practically  the  dominion  of  an  owner,  and  yet 
it  was  not  his. 

The  fund,  then,  being  a  Rhode  Island  fund,  disposable  under 
a  Rhode  Island  will,  it  follows,  naturally  and  necessarily,  that 
the  fact  of  its  disposition  must  be  determined  by  Rhode  Island 
law. 

The  question  is  not  what  intent  is  to  be  imputed  to  the  will  of 
Mr.  Rice,  but  what  intent  is  to  be  imputed  to  the  will  of  Mrs. 
Bourne.  She  authorized  a  disposition  of  her  property  by  an 
appointment,  and   it  is  under  her  will  that  the  question  arises 


EXECUTION    OF    POWER    IN    WILL.  569 

whether  an  appointment  has  been  made.  Her  will  is  to  be  ad- 
judged by  the  law  of  her  domicile.  So  far  as  assumptions  of 
intent  may  be  made,  it  is  to  be  presumed  she  intended  the  appoint- 
ment to  be  made  according  to  the  law  of  her  domicile,  and  not  by 
the  law  of  New  York  or  England,  or  any  other  place  where  the 
donee  of  the  power  might  happen  to  live.  It  is  not  the  fact  of 
Mrs.  Bourne's  ownership  of  the  property  which  points  to  the  law 
of  this  State  as  the  criterion,  but  the  fact  that  her  will  is  the  con- 
trolling instrument  in  the  disposition  of  the  property.  Precisely 
this  question  arose  in  Sezvell  v.  IVilmcr,  132  Mass.  131,  where 
Judge  Gray  remarked  that  the  question  is  singularly  free  of 
direct  authority.  In  that  case  a  Massachusetts  testator  gave  to 
his  daughter  a  power  of  appointment  of  certain  property.  The 
daughter  lived  in  Maryland,  where  she  died,  leaving  a  will  devis- 
ing all  her  property  to  her  husband,  but  making  no  mention  of  the 
power.  In  Massachusetts  this  was  an  execution  of  the  power,  but 
in  Maryland  it  was  not ;  and  the  question  arose  which  law  should 
govern.  It  was  held  that  the  will  of  the  father  was  the  controlling 
instrument,  and  hence  that  the  law  of  his  domicile  was  to  apply. 
The  same  decision  was  made  in  Bingham's  Appeal,  64  Pa.  St. 
345,  which  is  cited  in  Seivall  v.  Wilmer  with  approval.  In  Eng- 
land, also,  it  has  been  held  that  the  validity  of  the  execution  of 
a  power  is  to  be  determined  by  the  law  of  the  domicile  of  the  donor 
of  the  power.  Tatnall  v.  Haukey,  2  Moore  P.  C.  342 ;  In  re  Alex- 
ander, 6  Jur.  N.  S.  354. 

The  principle  on  which  these  cases  proceed  is  that  to  which 
we  have  already  alluded,  viz.,  that  the  appointer  is  merely  the 
instrument  by-  whom  the  original  testator  designates  the  bene- 
ficiary, and  the  appointee  takes  under  the  original  will,  and  not 
from  the  donee  of  the  power.  The  law  of  the  domicile  of  the 
original  testator  is,  therefore,  the  appropriate  test  of  an  execution 
of  a  power.  The  case  of  D'Hitart  v.  Harkness,  34  Beav.  324, 
328,  apparently  holds  the  contrary,  but,  we  think,  only  apparently. 
In  that  case  property  was  held  under  an  English  will,  with  power 
of  appointment,  by  will,  in  a  woman  domiciled  in  France.  She 
died,  leaving  a  holograph  which  was  valid  as  a  will  in  France, 
but  not  in  England.  Under  the  Wills  Act  it  was  admitted  to 
probate  in  England  as  a  foreign  will,  which  gave  it  all  the 
validity  of  an  English  will.  The  probate  in  England  was  held 
to  be  conclusive  that  it  was  a  good  will  according  to  English 
law,  and  being  a  will  it  executed  the  power.  The  case  was  really 
decided   bv  the   law   of  England.       While    there   are   numerous 


570  PRIVATE    INTERNATIONAL    LAW. 

decisions  upon  the  general  rule  that  a  will  is  to  be  governed  by 
the  law  of  the  testator's  domicile,  such  decisions  are  not  to  be 
confounded  with  the  present  question :  Which  testator  is  the  one 
to  be  considered  in  the  case  of  a  testamentary  power  ?  We  know 
of  no  case  which  applies  the  law  of  the  domicile  of  the  donee  of 
the  power  without  reference  to  that  of  the  donor.  For  these  rea- 
sons we  think  the  law  of  the  domicile  of  the  doner  of  the  power 
should  control,  and  hence  tliat  the  law  of  Rhode  Island  must 
goven  in  this  case. 

What  is  the  law  of  Rhode  Island  relating  to  the  execution  of 
a  power?     In  Phillips  v.  Brown,  i6  R.  I.  279,  the  general  rule  of 
construction,  laid  down  by  Kent,  both  as  to  deeds  and  wills,  that 
if  an  interest  and  a  power  coexist  in  the  same  person,  an  act  done 
without  reference  to  the  power  will  be  applied  to  the  interest  and 
not  to  the  power,  was  examined  and  followed.    The  same  rule  was 
also  followed  in  Grundy  v.  Hadfield,  16  R.  I.  579,  and  in  Brown 
V.  Phillips,  16  R.  I.  612.    In  Matteson  v.  Goddard,  ante,  p.  299,  it 
was  held  that  a  general  residuary  clause  in  a  will  did  not  execute 
a  subsequently  created  power  of  appointment.     While  those  cases 
are  not  decisive  of  this  one,  the  reasoning  upon  which  they  rest  is 
equally  applicable,  viz.,  where  nothing  appears  to  show  an  intent 
to  execute  a  power,  the  court  cannot  infer  an  intent  to  do  so.     This 
was  the  almost  uniform  rule  prior  to  the  adoption  of  statutes  upon 
this  subject.     In  New  York  and  in  England  it  was  thought  that 
the  rule  often  defeated  the  intention  of  testators  who  probably  in- 
tended to  dispose  of  everything  they  had  power  to  dispose  of ;  and 
so  acts  were  ])assed  which  carried  property,  over  which  one  had 
a  power  of  appointment,  by  a  general  gift  of  his  own  property, 
unless  an  intention  not  to  execute  the  power  appeared.     We  do 
not  see  that  the  reason  upon  which  such   statutes  are  based  is 
conclusive.     It  is  equally  open  to  conjecture  that  one  who  means 
to  execute  a  power  will  signify  in  some  way  an  intention  to  do  s'o. 
If  a  computation  could  be  made,  it  woukl  doubtless  appear  that, 
in  the  execution  of  powers,  a  large  majority  of  wills  make  proper 
reference  to  the  power.     The  statute  gives  an  arbitrary  direction, 
against  which,  it  seems  to  us,  the  reason  is  stronger  than  for  it. 
The  rule  alreadv  recognized  in  this  State  is  as  applicable  to  wills 
as  to  deeds,  and  in  our  opinion  it  should  be  so  applied.     The  same 
rule  is  laid  down  in  Mines  v.    Gambrill,  71  Md.  30;  Hollister  v. 
Shaw,  46  Conn.  248;  Funk  v.  Egglcston,  92  111.  515;  Bilderhach 
X.  Boyce,  14  S.  Car.  528,  and  cases  cited  in  our  previous  opinions. 
The  same  rule  also  pervaded  in  England,  New  York,  and  Penn- 


EXECUTION    OF    POWER    IN    WILL.  571 

sylvania  prior  to  the  passage  of  statutes.  In  Massachusetts  alone 
was  a  contrar}'  rule  adopted  by  the  court.  The  law,  therefore,  has 
been  practically  uniform  except  as  it  has  been  changed  by  stat- 
utes. It  is  urged  that  these  statutes  show  a  tendency  of  opinion 
which  the  court  should  follow  by  adopting  the  rule  of  the  statutes. 
The  opportunity  to  make  law  is  alluring,  but  it  tempts  beyond  the 
judicial  path.  As  our  province  is  to  declare  law  rather  than  to 
make  it,  we  deem  it  our  duty  to  adhere  to  the  rule  which  is  com- 
mended to  us  by  reason  and  precedent,  until,  as  elsewhere,  it  shall 
be  changed  bv  legislative  authoritv.  If  such  a  rule  be  the  wiser 
one,  the  legislature  can  enact  it ;  but  outside  of  a  statute  it  is  hard 
to  see  upon  what  ground  a  court  can  decree  an  intention  to  execute 
a  power  when  in  fact  no  such  intention  is  in  any  way  evinced. 
Applying  to  this  case,  then,  the  rule  that,  to  support  an  execution 
of  a  power,  something  must  appear  to  show  an  intent  to  execute 
it,  we  come  to  the  inquiry  whether  such  an  intent  appears.  To 
solve  this  we  must  look  to  the  will  itself  and  not  to  extrinsic  facts, 
except  as  they  enter  into  and  give  color  to  the  will.  In  the  will 
there  is  no  reference  to  the  power,  but  it  is  urged  that  an  inten- 
tion to  execute  the  power  is  to  be  inferred  from  its  contents  and 
the  circumstances  of  its  execution.  It  is  claimed  that  Rice's  rela- 
tions with  his  grandmother  were  so  intimate  as  to  raise  a  presump- 
tion that  he  knew  the  contents  of  her  will,  especially  in  view  of  the 
fact  that  his  bequests  exceeded  the  amount  of  his  own  estate. 
Rice's  will  was  made  at  Liverpool  pursuant  to  a  suggestion  from 
the  complainant  that,  owing  to  the  will  of  his  grandmother,  he 
ought  not  to  cross  the  ocean  without  making  his  will.  He 
received  $625,000  outright  under  his  grandmother's  will,  beside 
the  income  of  one  sixth  of  the  residuary  estate  for  life,  with  the 
power  of  appointment.  If  he  knew  of  this  power,  it  is  most  nat- 
ural thai  he  would  in  some  way  have  referred  to  it.  If  lie  knew 
the  amount  absolutelv  bequeathed  to  him,  or  expected  a  large 
bequest,  it  would  account  for  all  the  legacies  in  his  will.  After  he 
knew  of  the  pov^-cr  of  appointment  he  did  not  change  his  will. 
Perhaps  his  mind  so  dwelt  upon  the  legacy  of  $625,000  that  he 
gave  no  thought  to  a  possible  appointment  of  one  fifth  of  that 
amount  in  the  residuary  clause ;  or  perhaps,  after  hearing  of  the 
power,  he  intended  some  time  to  make  a  disposition  of  it.  But, 
however  it  was,  he  gave  no  sign  as  to  the  power.  The  fact  that 
at  the  time  of  his  death,  his  estate  was  somewhat  less  than  his 
bequests  is  not  significant ;  for  evidently  he  was  not  a  close  finan- 
cier, and  gave  little  heed  to  the  depreciation  of  his  estate.     The 


572  PRIVATE    INTERNATIONAL    LAW. 

deficiency,  however,  is  not  so  marked  as  to  raise  a  presumption  in 
favor  of  the  execution  of  the  power,  even  if  we  could  properly 
look  to  that  fact  for  that  purpose.  This  and  several  other  inter- 
esting legal  questions  have  been  raised  and  ably  presented,  upon 
the  point  of  intention,  but  we  do  not  deem  it  necessary  to  pass 
upon  them,  inasmuch  as  we  do  not  find  from  the  facts  any  suf- 
ficient or  satisfactory  evidence  of  an  intention  to  execute  the 
power.  We  therefore  decide  that  the  fund  in  question  did  not  so 
pass  by  appointment  under  the  will  of  Mr.  Rice,  and  therefore 
belongs  to  the  heirs  of  Mrs.  Bourne  according  to  the  terms  of  her 
^,il]  Decree  accordingly.^^ 


'"See  Bullerdick  v.  Wright,  148  Ind.  477,  47  N.  E.  931;  Meeker  v. 
Breintnall,  38  N.  J.  Eg.  345;  Hassam  v.  Hasen,  136  Mass.  93,  30  N.  E.  469.' 
Kimball  v.  Bible  Society,  65  N.  H.  139,  23  Atl.  Rep.  83:  In  re  Price,  i 
Chan.  Rep.  442  (1900);  In  re  D'Estes  Settlement,  i  Ch.  Rep.  898  (1903); 
Lane  v.  Lane,  55  Atl.  Rep.  184  (1903)- 


CHAPTER   XVI. 

PROCEDURE. 

[Dicey  Conflict  of  Laws,  Chap.  31.*] 

1.  Procedure.  3.  Judicial  Notice  and  Proof  of  For- 

2.  Pleading  Foreign  Laws.  eign  Laws. 

4.  Presumption  as  to  Foreign  Law. 

All  matter  of  procedtire  are  governed  wholly  by  the  local  or 
territorial  law  of  the  country  to  which  a  Court  wherein  an  action 
is  brought  or  other  legal  proceeding  is  taken  belongs  {lex  fori). 

In  this  Digest  the  term  "procedure"  is  to  be  taken  in  its  widest 
sense,  and  includes  (inter  alia)  — 

( [ )   remedies  and  process ; 

(2)  evidence; 

(3)  limitation  of  an  action  or  other  proceeding; 

(4)  set-off  or  counter-claim. 

COMMENT. 

The  principle  that  procedure  is  governed  by  the  lex  fori  is  of 
general  application  and  universally  admitted,  but  the  Courts  of 
any  country  can  apply  it  only  to  proceedings  which  take  place  in, 
or  at  any  rate  under  the  law  of,  that  country.  In  a  body  of  Rules, 
therefore,  such  as  those  contained  in  this  Digest,  which  state  the 
principles  enforced  by  an  English  Court,  the  maxim  that  proced- 
ure is  governed  by  the  lex  fori  means  in  effect  that  it  is  governed 
by  the  ordinary' law  of  England,  without  any  reference  to  any  for- 
eign law  whatever.  The  maxim  is  in  fact  a  negative  rule ;  it  lays 
down  that  the  High  Court,  in  common,  it  may  be  added,  with  every 
other  English  Court,  pursues  its  ordinary  practice  and  adheres  te 
its  ordinary  methods  of  investigation  whatever  be  the  character 
of  the  parties,  or  the  nature  of  the  cause  which  is  brought  be- 
fore it. 

"A  person,"  it  has  been  said,  "suing  in  this  countr)-.  must  take 
"the  law  as  he  finds  it ;  he  cannot,  by  virtue  of  any  regulation  in 
"his  own  country,  enjoy  greater  advantages  than  other  suitors 


*This  chapter  is  inserted  by  permission  of  tlic  .Xuuricaii   Publisher  of 
'Dicev  on  the  Conflict  of  Laws." 


574  PRIVATE    INTERNATIONAL    LAW. 

"here,  and  he  ought  not  therefore  to  be  deprived  of  any  superior 
"advantage  which  the  law  of  this  country  may  "confer.  He  is  to 
"have  the  same  rights  which  all  the  subjects  of  this  kingdom  are 
"entitled  to,"  and  the  foreign  defendant,  it  may  be  added,  is  to 
have  the  advantages,  if  any,  which  the  form  of  procedure  in  this 
country  gives  to  every  defendant. 

Whilst,  however,  it  is  certain  that  all  matters  which  concern 
procedure  are  in  an  English  Court  governed  by  the  law  of  Eng- 
•and,  it  is  equally  clear  that  everything  which  goes  to  the  substance 
of  a  party's  rights  and  does  not  concern  procedure  is  governed  by 
the  law  appropriate  to  the  case. 

"The  law  on  this  point  is  well  settled  in  this  country,  where 
"this  distinction  is  properly  taken,  that  whatever  relates  to  the 
"remedy  to  be  enforced  must  be  determined  by  the  lev  fori, — the 
"law  of  the  country  to  the  tribunals  of  which  the  appeal  is  made," 
but  that  whatever  relates  to  the  rights  of  the  parties  must  be  de- 
termined by  the  proper  law  of  the  contract  or  other  transaction 
on  which  their  rights  depend. 

Our  Rule  is  clear  and  well  established.  The  difficulty  of  its 
application  to  a  given  case  lies  in  discriminating  between  matters 
which  belong  to  procedure  and  matters  which  affect  the  substan- 
tive rights  of  the  parties.  In  the  determination  of  this  question 
two  considerations  must  be  borne  in  mind : — 

First.  English  lawyers  give  the  widest  possible  extension  to 
the  meaning  of  the  term  "procedure."  The  expression,  as  inter- 
preted by  our  judges,  includes  all  legal  remedies,  and  everything 
connected  with  the  enforcement  of  a  right.  It  covers,  therefore, 
the  whole  field  of  practice ;  it  includes  the  whole  law  of  evidence, 
as  well  as  every  rule  in  respect  of  the  limitation  of  an  action  or  of 
any  other  legal  proceeding  for  the  enforcement  of  a  right,  and 
hence  it  further  includes  the  methods,  e.  g.,  seizure  of  goods  or 
arrest  of  person,  by  which  a  judgment  may  be  enforced. 

Secondly.  Any  rule  of  law  which  solely  affects,  not  the  en- 
forcement of  a  right  but  the  nature  of  the  right  itself,  does  not 
come  under  the  head  of  procedure.  Thus,  if  the  law  which  gov- 
erns, e.  g.,  the  making  of  a  contract,  renders  the  contract  abso- 
lutely void,  this  is  not  a  matter  of  procedure,  for  it  affects  the 
rights  of  the  parties  to  the  contract,  and  not  the  remedy  for  the 
enforcement  of  such  rights. 

Hence  any  rule  limiting  tlie  time  within  which  an  action  may 
be  brought,  any  limitation  in  th  strict  sense  of  that  word,  is  a  mat- 
ter of  procedure  governed  wholly  by  the  lex  fori.     But  a  rule 


PROCEDURE.  575 

which  after  the  lapse  of  a  certain  time  extinguishes  a  right  of 
action — a  rule  of  prescription  in  the  strict  sense  of  that  word — is 
not  a  matter  of  procedure,  but  a  matter  which  touches  a  person's 
substantive  rights,  and  is  therefore  governed,  not  by  the  lex  fori, 
buL  by  the  law,  whatever  it  may  be,  which  governs  the  right  in 
question.  Thus  if,  in  an  action  for  a  debt  incurred  in  France,  the 
defence  is  raised  that  the  action  is  barred  under  French  law  by 
lapse  of  time,  or  that  for  want  of  some  formality  an  action  could 
not  be  brought  for  the  debt  in  a  French  Court,  the  validity  of  the 
defence  depends  upon  the  real  nature  of  the  French  law  relied 
upon.  If  that  law  merely  takes  away  the  plaintiff's  remedy,  it  has 
no  effect  in  England.  If,  on  the  other  hand,  the  French  law 
extinguishes  the  plaintiff's  right  to  be  paid  the  debt,  it  affords  a 
complete  defence  to  an  action  in  England. 

To  this  it  must  be  added  that  an  Englisli  statutory  enactment, 
which  aft'ects  both  a  person's  rights  and  the  method  of  its  enforce- 
ment, establishes  a  rule  of  procedure  and  therefore  applies  to  an 
action  in  respect  of  a  right  acquired  under  foreign  law.  Hence  the 
4th  Section  of  the  Statute  of  Frauds,  and  the  4th  Section  of  the 
Sale  of  Goods  Act,  1893,  which,  whether  affecting  rights  or  not, 
certainly  affect  procedure,  apply  to  actions  on  contracts  made  in  a 
foreign  country  and  governed  by  foreign  law.  Whence  the  con- 
clusion follows  that  a  contract  though  made  abroad,  which  does 
not  satisfy  the  provisions  of  the  4th  section  of  the  Statute  of 
Frauds,  or  of  the  Sale  of  Goods  Act,  1893,  respectively,  cannot 
be  enforced  in  England. 

With  regard  to  the  Illustrations  to  this  Rule  it  must  always 
be  borne  in  mind  that,  as  we  are  dealing  with  proceedings  before 
an  ICnglish  Court,  the  lex  fori  is  the  same  thing  as  the  law  of 
England. 

ILLUSTF-iATIONS. 

(/)  Remedies  and  Process. 

1.  A  brings  an  action  against  X  to  obtain  specific  perform- 
ance of  a  contract  made  between  A  and  .V  in  and  subject  to  the 
law  of  a  foreign  countrN-.  The  contract  is  one  of  wliich  A  might, 
according  to  the  law  of  that  country  {lex  loci  contractus),  obtain 
specific  performance,  but  it  is  not  one  for  which  specfic  j^erform- 
ance  can  be  granted  according  to  the  law  of  England  {lex  fori). 
A  cannot  maintain  an  action  for  specific  performance. 

2.  A  brings  an  action  against  X  for  breach  of  a  contract 


576  PRIVATE    INTERNATIONAL    LAW. 

made  with  X  in  Scotland  as  a  member  of  a  Scotch  firm.  Accord- 
ing to  the  law  of  Scotland  (lex  loci  contractus) ,  A  could  not  main- 
tain an  action  against  X  until  he  had  sued  the  firm,  which  he  has 
not  done.  According  to  the  law  of  England  (lex  fori),  the  right 
to  bring  an  action  against  the  member  of  a  firm  does  not  depend 
upon  the  firm  having  been  first  sued.  A  can  maintain  an  action 
against  X. 

3.  A,  a  Portuguese,  at  a  time  when  arrest  of  a  debtor  on 
mesne  process  is  allowable  under  the  law  of  England  (lex  fori), 
but  is  not  allowable  under  the  law  of  Portugal  (lex  loci  con- 
tractus), brings  an  action  against  X,  a  Portuguese,  for  a  debt  con- 
tracted in  Portugal.    A  has  a  right  to  arrest  X. 

4.  A  in  Spain  sells  X  goods  of  the  value  of  £50.  The  con- 
tract is  made  by  word  of  mouth,  and  there  is  no  memorandum  of 
it  in  writing.  The  contract  is  valid  and  enforceable  according  to 
Spanish  law  (lex  loci  contractus).  A  contract  of  this  description 
is,  under  the  Sale  of  Goods  Act,  1893,  s.  4  (lex  fori),  not  enforce- 
able by  action.  A  cannot  maintain  an  action  against  X  for  refusal 
to  accept  the  goods. 

(2)     Evidence. 

5.  A  brings  an  action  against  X  to  recover  a  debt  incurred 
by  X  in  and  under  the  law  of  a  foreign  country  (lex  loci  con- 
tractus). A  tenders  evidence  of  the  debt  which  is  admissible  by 
the  law  of  the  foreign  country,  but  is  inadmissible  by  the  law  of 
England  (lex  fori).    The  evidence  is  inadmissible. 

6.  A  brings  an  action  against  A',  an  Englishman,  for  breach 
of  a  promise  of  marriage  made  by  X  to  A,  a  German  woman,  at 
Constantinople.  A  has  not  such  corroborative  evidence  as  is  re- 
quired by  32  &  33  Vict.  cap.  68,  s.  2  (lex  fori).  A  cannot  prove 
the  promise  or  maintain  the  action. 

7.  A,  a  Frenchman,  makes  a  contract  in  France  with  X,  an 
Englishman,  to  serve  him  in.  France  from  a  future  date  for  a  year 
certain.  The  contract  is  made  by  word  of  mouth,  and  there  is  no 
memorandum  of  it  in  writing.  It  is  a  contract  valid  by  the  law  of 
France  (lex  loci  contractus),  for  the  breach  of  which  an  action 
might  be  brought  in  a  French  Court,  but  under  the  4th  section  of 
the  .Statute  of  Frauds  no  action  can  be  brought  on  such  an  agree- 
ment unless  there  is  a  memorandum  thereof  in  writing.  The 
enactment  applies  to  procedure.  A  cannot  maintain  an  action 
in  England  against  X  for  breach  of  the  contract. 


PROCEDURE.  DU 

(j)   Limitation. 

8.  X  contracts  a  debt  to  A  in  Scotland.  The  recovery  of  the 
debt  is  not  barred  by  lapse  of  time,  according  t(j  Scotch  law  (lex 
loci  contractus),  but  it  is  barred  b}  the  English  Limitation  Act, 
1623,  21  Jac.  I.  cap.  16  {lex  fori).  .1  cannot  maintain  an  action 
against  A'. 

Q.  X  incurs  a  debt  to  A  in  France.  The  recovery  of  such  a 
debt  is  barred  by  die  French  law  of  limitation  (lex  loci  contrac- 
tus), but  is  not  barred  by  any  English  Statute  of  Limitation.  A 
can  maintain  an  action  for  the  debt  against  X. 

10.  A  in  a.  Manx  Court  brings  an  action  against  X  for  a 
debt  incurred  by  A'  to  A  in  the  Isle  of  Man.  The  action,  not 
being  brought  within  three  years  from  the  time  when  the  cause  of 
action  arose,  is  barred  by  Manx  law,  and  judgment  is  on  that 
account  given  in  favor  of  A'.  A  then,  within  six  years  from  the 
time  when  the  debt  is  mcurred,  brings  an  action  against  X  in  Eng- 
land. This  action  is  not  barred  by  the  English  Limitation  Act, 
1623  (lex  fori).    A  can  maintain  his  action  against  X. 

11.  X,  under  a  bond  made  in  India,  is  bound  to  repay  A 
£100.  Specialty  debts  have,  under  the  law  of  India  [lex  loci  con- 
tractus), no  higher  legal  value  than  simple  cuntract  debts,  and 
under  that  law  the  remedy  for  both  is  barred  by  the  lapse  of  three 
years.  The  period  of  limitation  for  actions  on  specialty  debts  is, 
under  the  law  of  England,— 3  &  4  Will.  IV.  cap.  42,  s.  3,  {lex 
fori), — twenty  years.  A,  ten  years  after  the  execution  of  the 
bond,  brings  an  action  in  England  upon  it  against  A',  A  can  main- 
tain the  action. 

(4)  Set-off. 

12.  X  in  1855  contracts  in  Prussia  with  A  for  the  carriage 
by  A  of  goods  by  sea  from  Memel  to  London.  A  brings  an  action 
against  A'  for  the  freight,  and  A'  under  Prussian  law  ( lex  loci 
contractus),  claims  to  set  otT  money,  due  to  him  by  way  of  dam- 
ages from  A,  which  could  not  at  that  date  be  made,  according  to 
the  rules  of  English  procedure  {lex  fori),  the  subject  either  of  a 
set-ofl"  or  a  counter-claim.  A^  is  not  allowed  to  set  off,  against  the 
money  due  to  A,  the  damages  due  from  A  to  X. 

Lex  Fori  not  Applicable. 

13.  A  brings  an  action  on  a  contract  matle  by  word  of  mouth 
between  A^  and  A  in  and  under  the  law  of  a  foreign  country.  It 
is  a  kind  of  contract  which  under  the  law  of  England  {lex  fori) 

37 


71. '^ 


578  PRIVATE    INTERNATIONAL    LAW. 

is  valid  though  not  made  in  writing,  but  under  the  law  of  the  for- 
eign country  (lex  loci  contractus)  is  void  if  not  made  in  writing. 
A  cannot  maintain  this  action,  i.  e.,  the  validity  of  the  contract  is 
governed  in  England,  not  by  the  lex  fori,  but  by  the  lex  loci  con- 
tractus. 

14.  A  brings  an  action  against  X  for  breach  of  a  contract 
made  in  a  foreign  country.  It  is  proved  that  under  the  law  of  that 
country  {lex  loci  contractus)  the  contract  for  want  of  a  stamp  is 
uninforceable.  If  the  want  of  the  stamp  merely  deprives  A  of  his 
remedy  in  the  foreign  country,  then  he  can  maintain  an  action  in 
England  for  breach  of  the  contract,  i.  e.,  the  want  of  the  stamp 
merely  affects  procedure  which  is  governed  by  the  lex  fori.  If 
the  want  of  a  stamp  makes  the  contract  void  ah  inito,  then  A  can- 
not maintain  an  action  in  England,  i.  c.,  the  want  of  a  stamp 
affects  a  matter  of  right  and  is  governed  by  the  lex  loci  contractus. 

15.  A'  commits  an  assault  upon  A  in  Jamaica.  For  some 
time  after  the  assault  is  committed,  A  might,  had  X  been  in  Eng- 
land, have  maintained  an  action  for  it  there  against  X.  Before  X 
returns  to  England  the  legislature  of  Jamaica  passes  an  Act 
whereby  X  is  in  respect  of  the  assault  acquitted  and  indemnified 
against  the  Queen  and  all  other  persons,  and  the  assault  is  de- 
clared to  be  lawful.  X  then  returns  to  England,  and  A  brings  an 
action  against  X  for  the  assault.  A  cannot  maintain  the  action, 
i.  e.,  the  character  of  the  act  done  by  X,  or  A's  right  to  treat  it 
as  a  wrong,  is  governed,  not  by  the  lex  fori,  but  by  the  lex  loci 
delicti  commissi.^^ 


^"Procedure. — A  person  suing  in  this  country  must  take  the  law  as  he 
finds  it;  he  cannot,  by  virtue  of  any  regulation  in  his  own  country,  enjoy 
greater  advantages  than  other  suitors  here,  and  he  ought  not  therefore  to 
be  deprived  of  any  superior  advantage  which  the  law  of  this  country  may 
confer.  De  La  Vega  v.  Vianna,  i  Barn.  &  Adolph.,  284  (1830);  Ativater 
V.  Totvnsend,  4  Conn.  47;  Smith  v.  Spinolla,  2  Johns.  198. 

Remedies  are  governed  by  the  law  of  the  forum.  A  confession  of 
judgment  pertains  to  the  remedy.  A  party  seeking  to  enforce  here  a  con- 
tract made  in  another  state  must  do  so  in  accordance  with  the  laws  of  this 
state.  Parties  cannot  by  contract  made  in  another  state  engraft  upon  our 
procedure  here  remedies  which  our  laws  do  not  authorize.  Hamilton  v. 
Schoenberger,  47  Jotca  385  (1877). 

The  law  of  the  remedy  is  no  part  of  the  contract.  All  questions  as  to 
forms  or  methods,  or  conduct  or  process  or  remedy,  statutes  of  limitations, 
statute  of  frauds,  set-offs,  and  exemptions  are  all  governed  by  the  law  of 
the  place  where  suit  is  brought.  Mineral  Point  Ry.  Co.  v.  Barron,  83  111. 
365  (1876);  Hoadley  v.  Transportation  Co.,  115  Mass.  304.  For  a  discus- 
sion as  to  the  law  that  shall  control  in  case  of  a  statute  of  limitations,  see 
Townsend  v.  Jemison,  9  How.  407  (1849). 

Questions  of  evidence,  such  as  whether  a  witness  is  competent  or  not, 
whether  a  writing  is  required  or  not,  whether  a  stamp  is  necessary,  and 


PROCEDURE.  .  579 

questions  of  damages  or  interest,  all   those  are  determined  l)y  the  law  of 
the  forum.     Bain  r.  IVhitchaz'en,  3  H.  L.  C.  i. 

I.  If  a  contract  he  entered  into  in  one  place  to  l)c  performed  in  another, 
and  the  rate  of  interest  differ  in  the  two  countries,  the  parties  may  stipulate 
for  the  rate  of  interest  of  either  country,  and  thus  by  their  own  express 
contract,  determine  with  reference  to  the  law  of  which  country  that  inci- 
dent of  the  contract  shall  be  decided.  2.  If  the  contract,  so  entered  into, 
stipulate  for  interest  generally,  it  shall  be  the  rate  of  interest  of  the  place 
of  payment,  unless  it  appear  the  parties  intended  to  contract  with  reference 
to  the  law  of  the  other  place.  3.  If  the  contract  be  so  entered  into,  for 
money,  payable  at  a  place  on  a  day  certain,  and  no  interest  be  stipulated, 
and  payment  be  delayed,  interest,  by  way  of  damages,  shall  be  allowed 
according  to  the  law  of  the  place  of  payment  where  the  money  may  be 
supposed  to  have  been  required  by  the  creditor  for  use,  and  where  he  might 
be  supposed  to  have  borrowed  money  to  supply  the  deficiency  thus  occur- 
ring, and  to  have  paid  the  rate  of  interest  of  that  country,  j  Kent  116; 
Peck  V.  Mayo,  14  I't.  33:  Aycr  r.  Tildeii.  13  Gray  178;  Meyer  v.  Estes, 
164  Mass.  457. 

An  agreement  to  pay  an  additional  percentage  as  costs  for  collection 
of  the  note  may  be  enforced  where  the  note  was  executed,  but  the  courts 
of  another  state  or  country  are  not  bound  to  do  so.  The  effect  of  such  an 
agreement  was  to  provide  for  an  increase  of  costs  which  must  depend  upon 
the  law  of  the  forum,  and  if  in  the  nature  of  a  penalty,  may  not  be  enforced 
at  all.    Commercial  Bank  v.  Davidson,  18  Oregon  37  (1889). 

Pleading  Foreign  Laws. — Foreign  laws  must  be  specially  pleaded  unless 
the  rule  is  changed  by  statute.  If  the  foreign  law  is  immaterial  or  a  mere 
matter  of  evidence  it  need  not  be  pleaded.  Under  this  rule,  the  States  of 
the  Union  are  foreign  to  one  another.  Raynham  v.  Canton,  3  Pick.  293: 
Thomson-Houston  Electric  Co.  z'.  Palmer,  53  Minn.  174,  33  N.  IV.  Rep. 
1137:  Thatcher  v.  Morris,  11  N.  Y.  437:  Liverpool  Steam  Co.  1'.  Ins.  Co., 
129  U.  S.  397;  Kellcy  z'.  Kelley,  161  Mass.  11 1;  In  re  Capper's  Wilt,  83 
lozva  82. 

Judicial  Notice  and  Proof  of  Foreign  Laws. — Foreign  Laws,  like  other  "^  /\ 
facts,  must  be  proved,  unless  established  by  presumptions.  The  state  courts  ' '*  ^' 
do  not  take  judicial  notice  of  the  laws  of  sister  states  or  of  foreign  coun- 
tries. The  federal  courts  in  enforcing  state  laws  within  their  territorial 
jurisdiction,  take  judicial  notice  of  them.  The  Supreme  Court  of  the 
United  States,  in  hearing  appeals  from  federal  courts,  takes  judicial  notice 
of  the  laws  of  the  states,  but  in  hearing  a  case  from  a  state  court  it  takes 
judicial  notice  of  the  laws  of  the  state  from  which  the  case  comes  and  that 
is  all.  Kline  v.  Baker,  99  Mass.  253:  Liverpool  Steam  Co.  v.  Ins.  Co., 
120  U.  S.  397:  Hanley  v.  Donatihue,  116  U.  S.  i.  277.  In  speaking  of  the 
proof  of  foreign  law,  the  court,  in  the  case  of  Finney  z:  Guy.  189  C  S. 
335  (1903),  said:  "Although  the  law  of  a  foreign  jurisdiction  may  be 
proved  as  a  fact,  yet  the  evidence  of  a  witness  stating  what  the  law  of  a 
foreign  jurisdiction  is,  founded  upon  the  terms  of  a  statute,  and  the 
decisions  of  the  courts  thereon  as  to  its  meaning  and  effect,  is  really  a 
matter  of  opinion,  although  proved  as  a  fact,  and  courts  are  not  concluded 
thereby  from  themselves  consulting  and  construing  the  statutes  and 
decisions  which  have  been  themselves  proved,  or  from  deducing  a  result 
from  their  own  examination  of  them  that  may  differ  from  that  of  a  wit- 
ness upon  the  same  matter." 

In  Oziings  v.  Hull.  9  Ect.  (U.  S.)  607  (1835),  Judge  Story  said:     "We 

are  of  opinion   that   the   circuit   court    was   bound   to   take   judicial    notice 

of  the  laws   of   Louisiana.     The   circuit   courts   of   the   United    States   are 

created  by  congress,  not  for  the  purpose  of  administering  the  local  law  of 

a  single   state  alone,   but    to  administer  the  laws  of  all   the   states   in   the 


580  PRIVATE    INTERNATIONAL    LAW. 


Union  in  cases  to  which  they  respectfully  'apply.  The  judicial  power 
conferred  on  the  general  government  by  the  constitution  extends  to  many 
cases  arising  under  the  laws  of  the  different  states.  And  this  court  is 
called  upon,  in  the  exercise  of  its  appellate  jurisdiction,  constantly  to  take 
notice  of  and  administer  the  jurisprudence  of  all  the  states.  That  juris- 
prudence is,  then,  in  no  just  sense,  a  foreign  jurisprudence,  to  be  proved, 
in  the  courts  of  the  United  States,  by  the  ordinary  modes  of  proof  by 
which  the  laws  of  a  foreign  country  are  to  be  established ;  but  it  is  to  be 
judicially  taken  notice  of  in  the  same  manner  as  the  laws  of  the  United 
States  are  taken  notice  of  by  these  courts." 

Statutory  law  is  proved  by  producing  the  statute  itself,  or  such  a  copy 
of  it  as  is  approved  by  the  law  of  the  forum.  The  judicial  decisions  are  not 
usually  received  to  prove  the  statute  law,  but  such  decisions  may  be 
received  to  determine  the  proper  construction  of  the  foreign  law.  Kenny 
V.  Clarkson,  i  Johns,  Rep.  385;  Emery  v.  Berry,  28  N.  H.  473,  61  Am.  Dec. 
622;  Tenant  v.  Tenant,  no  Pa.  St.  478,  i  Atl.  532;  Gilchrist  v.  Oil  Co.,  21 
W.  Va.  115,  45  Am.  Rely.  555;  Jessitp  v.  Carnegie,  80  N.  Y.  441,  36  Am. 
Rep.  643:  Buc'her  v.  Ry.  Co.,  125  U.  S.  555;  Van  Mat  re  v.  Sankey,  14S  III. 
356,  23  L.  R.  A.  665. 

The  common  law  or  unwritten  law  of  a  country  is  to  be  proved  by 
the  best  evidence.  It  may  be  proved  by  the  testimony  of  judges  or  lawyers 
of  the  foreign  state,  or  it  may  be  proved  by  the  official  reports  of  cases. 
Hall  V.  Costello,  48  N.  H.  176;  Loring  v.  Thorndike,  5  Allen  2^7:  Ganer 
V.  Lanesborough,  it  CI.  &  F.  124:  Gardner  v.  Le:ins,  7  Gill  378;  Ufford  v. 
Spaulding,  156  Mass.  65;  Alexander  v.  Pa.  Co.,  48  Ohio  St.  623,  30  N.  E. 
69;  Kelley  t'.  Kelley,  161  Mass.  in. 

Presumption  as  to  Foreign  Law. — In  the  absence  of  any  evidence  to 
the  contrary,  it  is  presumed  that  the  law  of  a  foreign  country  is  like  our 
own,  providing  that  the  law  in  this  country  is  not  statute  law.  This  pre- 
sumption exists  as  between  states  or  countries  whose  system  is  based  upon 
the  common  law.  This  presumption  cannot  be  used  to  ascertain  the  law  of 
, .         J   .  a  foreign  country  whose  laws  are  founded  upon  some  other  system,  such 

ftj    \T^if(fJt         for  instance,  as  the  civil  law.     Com.  v.  Graham.  157  Mass.  73;  Buchanan 
*'^      ^  V.  Hubbard,  119  Ind.  187.  21  N.  E.  538:  Thorn  v.  IVeathcrly,  30  Ark.  37: 

Mohr  V.  Meisen,  47  Minn.  228:  Flagg  v.  Baldzvin,  38  N.  J.  Eq.  219,  48  Am. 
Rep.  308;  Knapp  v.  Knapp,  55  N.  IV.  Rep.  353;  Houghtailing  v.  Ball,  19 
Mo.  84,  59  Am.  Dec.  331. 

Finis. 


iiiU.lli. 


35 1^, 


INDEX 


ABANDONMENT: 

of  domicil,  when  complete,  58-79. 

ACCEPTANCE: 

as  an  element  of  contract,  403  et.  seq. 

ACTIONS : 

jurisdiction  over,  for  acts  committed  on  high  seas,  16-53. 

civil,  for  matters  occurring  at  sea,  52. 

local  and  transitory  distinguished,  126-149. 

where,  may  be  brought,  126-149. 

when  considered  penal,  150-168. 

by  and  against  foreign  corporations,  280-282. 

procedure,  governed  by  what  law,  573-580. 

ACTS : 

liability  for,  on  the  high  seas,  16-53. 

when  local,  when  transitory,  126-149,  526-547 

ADMINISTRATION: 

the  place  of  principal  administration  is  at  domicil,  216. 
relation  of  principal  to  ancillary,  221. 

ADMINISTRATORS: 

power  of  to  collect  debts  in  another  jurisdiction,  216-217. 

powers  of,  217. 

power  to  sue  and  be  sued,  223,  526-547. 

where  appointed,  215-229. 

ADMIRALTY: 

jurisdiction  of,  16-53. 

recognition  of  judgments  of,  230-254. 

contracts  in,  500. 

ADOPTED  CHILD: 
domicil  of  95,  96. 

ADOPTION  : 

distinguished  from  legitimation,  310-338. 

AFFINITY: 

as  an  impediment  to  marriage,  338-351. 

AFFREIGHTMENT : 

contracts  of,  500.  , 

AGE: 

age  required  to  choose  domicil,  76. 


582  INDEX 

ALIENS: 

liability  of,  for  crimes  committed  on  high  seas,  16-53. 

status  may  be  determined  by  commercial  domicil,  82-88. 

friends  and  enemies,  124,  125. 

rights  of,  124,  125. 

where  they  may  sue,  126-149. 

ALIEN  ENEMIES : 

may  be  ascertained  by  commercial  domicil,  82-88,  124. 

ALIMONY : 

what  jurisdiction  is  necessary  in  case  of,  184-200. 

ALLEGIANCE: 

distinguished  from  domicil,  58-79. 
defined,  106-126. 

AMBASSADORS: 

privileges  of,  47. 

ANIMUS  MANENDI: 
in  domicil,  56. 

APPEARANCE: 

as  a  part  of  procedure,  573-580. 

APPOINTMENT: 

of  executors  and  receivers,  215-229. 
power  of,  in  a  will,  567-572. 

APPRENTICE: 

domicil  of,  96. 

ASSAULT : 

committed  on  high  seas,  16-53. 

-  ASSIGNEE: 

in  bankruptcy,  200-214. 

ASSIGNMENT: 

of  a  vessel  on  the  high  seas,  52. 

in  bankruptcy,  200-214. 

of  personal  property,  362-379. 

ATTACHMENT: 

of  a  debt,  254-261. 

BANKRUPTCY: 

title  of  foreign  assigns  in,  204.  214. 

statutory  assignment  in,  204,  210,  211,  214. 

voluntary  assignment  in,  204,  214. 

when  foreign  assignees  may  sue,  204,  206,  209. 

jurisdiction  necessary  in  cases  of,  211,  213. 

discharge  of  debt  in  case  of,  213,  214. 

administration  in,  214. 


INDEX  583 

BASTARD: 

legitimation  of,  310-338. 

BIGAMOUS  MARRIAGE:    338-351. 
BIRTH: 

citizenship  by,  106-125. 

BRITISH  DOMINIONS: 
extent  of,  16-53. 

BRITISH  SHIPS: 

are  subject  to  what  laws,  16-53. 

BRITISH  SUBJECTS: 
who  are,  106-125. 

BURDEN  OF  PROOF : 

in  case  of  change  of  domicil,  56. 

BUSINESS  CAPACITY: 

determined  by  what  law,  262-265. 

CAPACITY: 

to  choose  domicil,  76. 

of  persons,  262-265. 

of  minors,  263-265. 

of  married  w'omen,  262-265. 

the  law  that  determines  capacity,  262-265. 

to  contract,  262-265. 

to  convey  or  incumber  real  property,  262-265. 

of  corporations,  determined  by  what  law,  280-282. 

to  marry,  338-351- 

to  make  a  will,  553-567. 

CARRIER: 

contracts  of,  500. 

CELEBRATION  : 

of  marriage,  338-351- 
CEREMONIES : 

as  an  essential  to  a  valid  marriage,  338-351. 

CHATTELS : 

where  attached,  254-261. 

of  wife,  as  affected  by  marriage,  352-361. 

transfer  of,  362-379. 

CHILDREN : 

legitimation  of,  by  marriage  of  parents,  63-75,  310-338. 

status  of,  by  what  determined,  64-75. 

domicil  of  origin  of  legitimated  children,  76. 

domicil  of  origin  of  foundlings,  76. 

domicil  of  origin  of  posthumous  children.  76. 

citizenship  of,  106-125. 


584  INDEX 

CHOICE: 

domicil  of,  56. 

essentials  necessary  to  acquire  a  domicil  of  choice,  76-79- 

CHOICE  OF  LAW: 
meaning  of,  2,  3. 
to  be  determined  by  the  court,  2. 

CHOSES  IN  ACTION: 

when  attached,  251-264. 

of  wife,  as  affected  by  marriage,  352-361. 

CITIZENS: 

laws  that  govern,  while  abroad,  46-53. 
by  birth  and  by  naturalization,   106-125. 

CITIZENSHIP: 

by  birth  and  by  naturalization,   106-125. 

CLERGYMEN : 

domicil  of,  96. 

COLLISION  OF  LAW: 
meaning  of,  12-15. 

COMITY : 

meaning  of,  10,  n. 

defined,  11. 

as  a  matter  of  obligation,  10,  11. 

in  bankruptcy,  200-214. 

in  case  of  executors,  administrators,  trustees  and  receivers,  215-229. 

in  case  of  foreign  corporations,  265-282. 

COMMERCIAL  DOMICIL: 

person's  character,  as  neutral  or  alien  enemy,  is  determined  by,  82-83. 

nature  of,  83. 

resemblance  of  to  civil  domicil,  83,  84. 

difference  between  civil  and  commercial,  84. 

as  to  residence,  84,  85. 

as  to  intention,  85. 

as  to  abandonment,  86. 

as  to  doimcil  by  operation  of  law,  86,  87. 

special  rules  governing,  87. 

civil  need  not  coincide  with  commercial,  87,  88. 

COMMON  CARRIER: 
contracts  of,  500. 

COMMON  LAW: 

as  to  citizenship,  106-125. 


NS5 


COMPETENCY 

of  majT-.-ed  ^--.x-Tcr^  jcc-jc»> 

to  aaik«  wil!.  55Jt~5C«r- 

COXFLICT  OF  LAWS 

tanrnr  of.  i-i> 
qocstiocs  inwlvevi    .     .  v- 

or^rin  utvl  growth  of.  r^ 

basis  of.  ;^n- 

rul^s  of.  II.  li 

ruinws  used  msreid  of.  :.>-i> 

COXSAXGUIXITY 

xs  m  imperlinwnt  to  numa^f.  Jv?S%\5i 

CONSTRUCTION: 

of  contracts,  4^59. 
of  wills.  55o-5^r 

COXSLXS: 

jurisdiction  of.  m  unchristian  count nes,  4is 

COX TRACT: 

in  unciviliied  cv>untr>\  I0j»,  104, 

actions  on.  whcr«  brv^it^ht.  1  jo- 140. 

marriage  as  a  contract,  li^  .v^-.^5l 

capacity  of  infants  to.  .XC-JO5. 

capacity  of  marricvl  women  to.  j(x>j05. 

in  respect  to  persotial  proixTty.  ^^cu-^rvJ- 

theor>-  of  the  law  of,  40;. 

place  where  made.  40J;. 

validity  of.  41  J. 

formalities  of.  43*1. 

oblig;ition  of.  4^^. 

interpretation  of.  4^^i 

performance  of.  4.W, 

discharge  of,  4.^0. 

usurious.  470. 

within  statute  ot   tv.iiuls,  4S1. 

of  married  women.  4g^v 

contracts  of  carriers,  500. 

CONVEYANCE: 

power  of  alien,  to  make,   IJ4.   IJ5 

power  to  make,  detennnu-il  In    \\\\.\{   law.  -X>.'  .t\s. 

of  real  estate,  401. 


586  INDEX 

CORPORATIONS: 
domicil  of,  97. 
foreign  defined,  280. 

power  of  a  state  to  exclude  foreign,  280-282. 
extra-territorial  powers  of  foreign,  265-282. 
actions  by  and  against  foreign,  281-282. 
liability  of  for  tort,  526-547. 

CORRESPONDENCE: 
contract  by,  402-500. 

COUNTERCLAIM: 

as  procedure,  573-580. 

COURT : 

primary  business  of,  2. 

jurisdiction  of,  in  local  and  transitory  actions,  126-149. 
jurisdiction  of,  over  penal  actions,  150-168. 
jurisdiction  of,  in  personam  and  in  rem,  169-184. 
jurisdiction  of,  in  cases  of  divorce,  184-200. 
jurisdiction  of,  in  case  of  bankruptcy,  200-214. 
jurisdiction  of,  in  cases  of  tort,  committed  abroad,  526-547. 
procedure  of,  governed  by  what  law,  573-580. 

COVERTURE : 

as  changing  a  woman's  domicil,  89-95. 

as  affecting  capacity,  262-265. 

as  affecting  property  rights  of  husband  and  wife,  352-361. 

as  affecting  power  to  contract,  493. 

CRIMES : 

who  may  punish  when  committed  on  high  seas,  16-53. 
jurisdiction  of,  when  committed  beyond  state  or  nation,  48-51. 
extra-territorial  recognition  of,  150-168. 

CURTESY : 

husband's  right  to,  352-361. 

CUSTODY  OF  CHILDREN : 

extra-territorial  effect  of  decree  for,  in  cases  of  divorce,   184-200. 

DAMAGES : 

distinguished  from  penalty,   150-168. 

DEATH : 

liability  for,  by  negligence  of  foreign  corporation,  526-54?- 

DEATH  DUTIES : 
law  of,  98-101. 

DEBTS: 

situs  of,  254-261. 

DECISIONS: 

extra-territorial  recognition  of,  230-254. 


INDEX 


587 


DEEDS: 

capacity  to  make,  262-265. 

DESCENT: 

of  real  estate,  547-553- 

DIPLOMATIC  AGENTS: 
privileges  of,  47. 

DISABILITY : 

of  infants  determined  by  what  law,  262-265. 

of  married  women  determined  by  what  law,  262-265. 

to  contract,  493. 

to  make  will,  governed  by  what  law,  553-567- 

DISCHARGE: 

extra-territorial  effect  of,  in  bankruptcy,  200-214. 
of  contract,  what  law  governs,  439. 

DISTRIBUTION  : 

of  personal  property  is  governed  by  law  of  domicil,  216,  547-553- 

DIVORCE: 

domicil  as  determining  jurisdiction  in  case  of  divorce,  89-95,  184-200. 
power  of  states  and  federal  government  to  regulate,  184-200. 
extra-territorial  effect  of,  184-200. 
service  of  process  in  cases  of,  184-200. 
law  applied  to  divorce  proceedings,  199. 
domicil  as  determining  jurisdiction  in,  199. 

DOMICIL: 

defined,  56. 

requisites  of,  56. 

intention  as  an  element  of,  56,  63-75,  77-79- 

residence  as  an  element  of,  56,  63-75. 

of  origin,  56,  63-75. 

of  choice,  56,  63-75. 

presumption  in  case  of,  56. 

importance  of.  57. 

distinguished  from  other  terms,  57. 

compared  with  "home,"  "residence,"  "habitancy"  and  "nationality," 

57,  58. 
how  acquired  or  lost,  64,  65,  66,  67-75. 
of  origin,  how  acquired  and  lost,  57-68.  75. 
of  choice,  how  acquired  and  lost,  57-68,  75. 
not  governed  by  allegiance,  57-68. 
reverter  of,  in  case  of  domicil  of  origin,  57-68. 
purpose  of,  68. 
a  person  cannot  be  without  a  domicil,  68,  69. 


588  INDEX 

DOMICIL— Continued : 

by  operation  of  law,  72. 

of  origin,  of  a  legitimate  child,  76. 

of  origin,  of  an  illegitimate  or  posthumous  child,  76. 

of  origin,  of  a  foundling,  76. 

of  origin  of  a  legitimate  child,  "](>. 

of  choice,  who  may  choose,  76. 

essentials  necessary  to  a  domicil  of  choice,  76-79. 

capacity  to  choose,  76-79. 

intention  necessary  to  acquire  domicil,  77-79. 

actual  presence  as  an  element  of,  78,  79. 

motive  as  an  element  of,  78,  79. 

domicil  while  in  transit,  79. 

native  domicil  easily  reverts,  79-82. 

civil  compared  with  commercial  domicil,  82-88. 

domicil  of  particular  persons,  89-97. 

of  married  women,  89-95. 

power  of  a  married  woman  to  choose  domicil,  89-95. 

of  minors,  95.  96. 

minors  cannot  change,  95,  96. 

minor  may  choose  if  emancipated,  95,  96. 

of  adopted  child,  95,  96. 

of  orphans,  95,  96. 

of  wards,  96. 

of  clergymen,  96. 

of  students,  96. 

of  pfficers,  96. 

of  soldiers,  96. 

of  servants,  96. 

of  prisoners,  96,  97. 

of  fugitives,  96,  97. 

of  insane  persons,  97. 

of  paupers,  97. 

of  corporations,  97. 

as  governing  taxation,  98-101. 

in  uncivilized  countries,  102-105. 

as  determining  jurisdiction  in  divorce,  184-200. 

as  governing  executors,  administrators,  trustees  and  receivers,  215- 

229. 
as  governing  attachment  or  garnishment  proceedings,  254-261. 
as  determining  capacity,  262-265. 
of  corporations,  265-282. 
as  determining  guardian's  liability,  291-309. 
as  determining  legitimation,  310-330. 
as  aflfecting  validity  of  marriage,  338-351. 
as  determining  property  rights  under  marriage,  352-361. 


INDEX  589 


DOMICIL— Continued: 

as  determining  transfer  of  personal  property,  362-379. 
determines  distribution  of  personal  property,  547-553. 
as  determining  power  to  make  a  will,  553-567. 

DOWER : 

wife's  right  to,  352-361. 

DUE  PROCESS  OF  LAW :    169-184. 

EMANCIPATION : 

gives  minor  capacity  to  choose  domicil,  95,  96. 

EVIDENCE: 

as  procedure,  576. 

EXECUTION  : 

of  power  in  a  will.  567-572. 

EXECUTORS : 

powers  of,  217-229. 

when  payment  to  is  valid.  218-229. 

powers  of,  to  sue  and  be  sued,  223. 

EXPATRIATION : 

right  of,  106-125. 

EX-TERRITORIAL  EFFECT  OF  LAWS : 
meaning  of,  12-15. 

EX-TERRITORIAL  OPERATION  OF  LAWS: 
meaning  of,  12-15. 

EX-TERRITORIAL  RECOGNITION  OF  RIGHTS: 

meaning  of,  12-15. 

FOREIGN  ADMINISTRATION: 
effect  of,  215-229. 

FOREIGN  BANKRUPT  LAWS: 

extra-territorial  effect  of,  200-214. 

FOREIGN  CORPORATIONS: 
defined.  280. 

extra-territorial  powers  of,  265-282. 
power  of  a  state  to  exclude,  265-282. 
actions  by  and  against,  280-282,  526-547. 

FOREIGN  GUARDIANS: 

rights,  duties  and  powers  of,  215-229.  282-291. 
control  of,  over  person  of  ward,  282-291. 
extra-territorial  recognition  of.  282-291. 
control  over  property  of  ward.  291-309. 
care  to  be  exerci.sed  by,  291-309. 
what  law  determines  liability  of,  291-309. 
power  of,  to  sue  and  be  sued.  291-309. 


590  INDEX 

FOREIGN  JUDGMENTS : 

extra-territorial  recognition  of,  230-254. 
^m  rem,  when  recognized  abroad,  231   et.  seq. 
in  personam,  when  recognized  abroad,  234  et.  seq. 
conclusiveness  of,  235-254. 
when  may  be  attacked  collaterally,  230-254. 

FOREIGN  LAWS: 
effect  of,  10,  II. 

when  adopted,  and  when  not  adopted,  10,  11. 
not  enforced,  if  penal,   150-168. 
judicial  notice  of,  579. 
pleading,  579. 
presumption  of,  580. 
proof  of,  579. 

FOREIGN  MARRIAGE: 

extra-territorial  recognition  of,  338-351- 

FOREIGN  RECEIVERS: 

rights,  duties,  and  powers  of,  215-229. 

FOREIGN  WILLS: 

validity  of,  interpretation,  and  construction  of,  553-567- 

FORUM : 

law  of,  determines  procedure,  573-58o. 

FOUNDLING: 

domicil  of  origin  of,  76. 

FRAUDS : 

as  affecting  judgments,  230-254. 
statute  of,  how  interpreted,  481. 

FUGITIVES : 

domicil  of,  97. 
FULL  FAITH  AND  CREDIT  CLAUSE :     169-184,  184-200,  230-254. 

GARNISHMENT: 

proceedings,  what  law  applicable,  254-261. 

GUARDIANS: 

power  of,  to  change  domicil  of  ward,  96. 

rights,  duties,  and  powers  of  foreign,  215-229. 

of  the  person  of  the  ward,  282-291. 

rights  and  powers  of  testamentary,  282-291. 

rights  and  powers  of  statutory,  282-291. 

who  may  be  appointed,  282-291. 

rights  of  foreign,  282-291. 

of  property  of  ward,  291-309. 

degree  of  care  to  be  exercised  over  ward's  property,  291-309.    - 

what  law  determines  guardian's  liability.  291-309. 

power  of  foreign  guardians  to  sue  and  be  sued,  291-309. 


INDKX  591 


HABITANCY: 

by  statute  is  the  equivalent  of  domicil.  57-58,  184-200. 
HIGH  SEAS: 

what  constitutes,  16-53. 

who  may  punish  crimes  conmiitted  upon,  16-53. 

ships  on,  are  governed  by  what  law,  52. 

law  of  contracts  of,  500. 
HOME: 

permanent,  means  domicil,  56. 

when  considered  as  domicil,  57,  58. 
HUSBAND : 

property  rights  of,  in  case  of  marriage;  352-361. 
ILLEGITIMATE  CHILD: 

how  may  be  made  legitimate.  63-79,  310-330. 
IMMOVABLES: 

locality  of  actions  in  regard  to,  126-149. 

distribution  of,  where  no  will,  547-553. 

IMPEDIMENTS  TO  MARRIAGE:    338-351. 

INCESTUOUS  MARRIAGE: 

what  is,  338-351- 
INDEPENDENT  PERSONS: 
may  choose  domicil,  76-79. 

INDORSEMENT: 

what  law  governs.  412. 

INFANTS: 

capacity  of,  262-265. 

INSANE  PERSONS: 
domicil  of,  97. 

INSOLVENCY: 

e.xtra-territorial  effect  of  insolvency  laws,  200-214. 

INSURANCE  CONTRACTS: 
where  made,  403. 

INTENTION: 

as  an  element  in  acquiring  domicil,  56. 

INTEREST: 

what  law  governs,  470. 

INTERMUNICIPAL  LAW: 
meaning  of,  12-15. 

INTERNATIONAL  LAW: 
defined,  15. 

distinguished  from  private  international  law.   15. 
how  far  a  part  of  the  law  of  a  nation,  16-53. 


592  INDEX 

IXTERXATIOXAL  PRIVATE  LAW: 
meaning  of,  12-15. 

INTERPRETATION: 
of  contract.  439. 
of  wills.  553-567. 

INTESTATE  SUCCESSION: 

law  of  in  case  of  personal  property,  547-553. 
law  of  in  case  of  real  estate.  547.  553. 

JUDICIAL  NOTICE: 

in  case  of  foreign  laws.  579. 

JUDGMENTS: 

effect  of  against  non-residents.  173. 

conclusiveness  of.  178. 

in  personam  and  in  rem.  169-184. 

effect  of.  in  cases  of  divorce.  184-200. 

recognition  of  foreign.  230-254. 

conclusiveness  of  as  between  states.  230-254. 

in  rem.  230-242. 

in  personam,  230-242. 

JURISDICTION: 

in  private  international  law.  i. 
is  to  be  determined  by  the  court.  2. 
of  nations,  16-53. 
of  states  in  the  L'nited  States.  47. 
limits  of,  in  the  United  States.  46.  47. 
of  counties.  47. 

of  ships  on  the  high  seas.  47.  48. 
of  acts  committed  without  the  state.  48-52. 
over  foreign  merchant  vessels,  47.  48. 
over  foreign  war  vessels.  47.  48. 

of  a  state  or  nation  for  crimes  committed  abroad,  48-51. 
over  torts  committed  on  the  high  seas,  51 -52. 
in  case  of  divorce,  domicil  determines,  89-95. 
in  case  of  local  and  transitory  actions.  126-149. 
of  penal  actions.  150-168. 
Win  rem.  169-1S4. 
in  personam.  169-184. 
how  acquired.  169-184. 
e.xtent  of.  169-184. 
in  case  of  divorce.  184-200. 
in  case  of  bankruptcy.  200-214. 
as  an  essential  of  a  valid  judgment.  230-254. 
over  foreign  corporations.  26y2&2. 
over  tons  committed  abroad,  526-547. 


INDEX  593 

LAND: 

power  of  alien  to  hold,  124.  125. 
trespass,  where  action  brought,   126-149. 
convoyancf  of,  401. 

LAW  : 

branches  of,  yy. 

of  newly  acquired  territory,  52,  53. 

when  considered  penal,  150-168. 

LAW  OF  A  COUNTRY : 

branches  of,  2i-7- 

LAW  OF  NATIONS: 

defined,  15. 

LEGACY  DUTY : 

Governed  by  the  law  rf  what  place,  98-101. 

LEGITIMACY : 

is  determined  by  birth,  63-75. 

LEGITniATION: 

by   subsequent  marriage  of  parents,  63-75,  3io-,'-38. 
what  law  determines  legitimation,  310-338. 
legitimation  distinguished  from  adoption,  310-338. 

LEX  LOCI  CONTRACTUS :    403,  et.  seq. " 

LIMITATION  OF  ACTIONS: 
as  procedure,  573. 

LOCAL  ACTIONS: 

where  brought.  126-149. 

LOCAL  LIMITS  OF  LAW: 
meaning  of,   12-15. 

LOCALITY  OF  ACTIONS : 
local,  126-149. 
transitory,  126-149. 

LUNATICS : 

domicil  of,  97. 

MARRIAGE: 

legitimation  by  subsequent,  63-75,  310-33O- 

as  changing  domicil  of  women,  89-95. 

in  uncivilized  countries,  103. 

citizenship  by,  106-125. 

as  a  contract,  188,  350. 

validity  of,  338-351- 

restrictions   upon   marriage,   338-351. 

incestuous  and  polygamous,  3,^8-351. 

as  affecting  property  rights  of  husband  and   wile,  352-361. 


594  INDEX 

MARRIAGE  SETTLEMENTS : 

extra-territorial  effect  of,  352-361. 

MARRIED  WOMEN: 
domicil  of,  89-95. 

when  married  woman  may  choose  domicil.  89-95,  184-200. 
property  rights  of,  352-361. 
power  to  contract,  493. 

MATRIMONIAL  DOAIICIL :     184-200. 
determines  property  rights,  352-361. 

MINORS : 

domicil  of,  95,  96. 

cannot  change  domicil,  95,  96. 

emancipation  gives  capacity  to  choose  domicil,  95,  96. 

capacity  of  determined  by  what  law,  262-265. 

MORTGAGES : 

of  personal  property,  400. 
of  real  estate,  401. 

MOVABLES : 

alienation  of,  in  uncivilized  countries,  104. 

action  in  case  of  injury  to,  126-149. 

assignment  of,  in  case  of  bankruptcy,  200-214. 

control   of  executors,  administrators,  trustees,   and   receivers,   over, 

215-229. 
jurisdiction  of,  in  cases  of  attachment  or  garnishment,  254-261. 
extra-territorial  transfers  of,  362-379. 
conditional  sales  of,  380,  386,  392. 
mortgages  of,  400. 
gifts  of,  397- 

distribution  of,  where  no  will,  547-553- 
validity  of  will  of,  553-567- 

NATIONS: 

territorial  jurisdiction  of,  16-53. 

NATIONALITY: 

is  not  determined  by  domicil,  57,  58. 
in  United  States,  106-125. 

NATURALIZATION  : 

citizens  by,    106-125. 

who  may  become  citizens  by,  123,  124. 

who  may  provide  for,  in  United  States,  106-125. 

methods  of,  106-125. 

conditions  of,  124. 

NEUTRALS: 

commercial  domicil  may  determine  status  of,  82-88. 


INDEX  595 

NON-RESIDENT: 

when  one  is  considered,  57,  58. 
effect  of  judgments  against,  169-184. 
effect  of  divorce  in  case  of.  184-200. 

NOTICE: 

judicial,  of  foreign  laws,  579. 

NULLITY  OF  MARRIAGE:    338-351- 

OBLIGATION : 

comity  as,  10. 

of  a  contract,  439. 

OFFICERS : 

domicil  of,  96. 

ORIGIN: 

domicil  of,  56. 

domicil  of  origin  of  different  persons.  76. 

PARENT : 

powers,  duties,  and  liabilities  as  guardian,  282-309. 

PAROL : 

contracts  and  the  statute  of  frauds.  481. 

PAUPERS : 

domicil  of,  97. 

power  of,  to  change  domicil,  97. 

PENAL  LAWS : 

defined.  150-168. 

distinguished  from  accumulative  damages,  151-168. 

extra-territorial  effect  of,   150-168. 

what  laws  are  considered.  152-166. 

rules  of  construction  applied  to,  150-168. 

scope  of  credit  clause  in  regard  to,  166-168. 

effect  of  credit  clause,   166-168. 

PERFORMANCE: 

of  contracts.  439. 

PERSONAL  PROPERTY: 
where  taxed,  99-101. 

alienation  of  in  uncivilized  country,  104. 
alien's  right  to  acquire,   106-125. 
assignment  of,  in  case  of  bankruptcy.  200-214. 
where  personal  property  may  be  administered.  216. 
power  of  trustees  over,  215-229. 

power  of  executors,  administrators,  and  receivers  over.  215-229. 
law  governing  in  cases  of  attachment  or  garnishment.  254-261. 


596  INDEX 

PERSONAL  PROPERTY— Continued : 

of  women  as  affected  by  marriage,  352-361. 

extra-territorial  transfers  of,  362-379. 

conditional  sales  of,  380,  386,  392. 

gifts  of,  397. 

mortgages  of.  400. 

distribution  of,  where  no  will,  547-553- 

will  of,  553-567- 

PLEADING: 

foreign  laws,  579. 

POLYGAMY:     338-351- 

POWER  OF  APPOINTMENT : 
in  a  will,  567-572. 

PRESUMPTIONS: 

in  case  of  domicil,  56. 
as  to  foreign  laws,  580. 

PRISONERS: 

domicil  of,  97. 

PRIVATE  INTERNATIONAL  LAW : 
nature  of,  1-15. 
questions  involved  in,  1-3. 
foreign  element,  in,  1-15. 
origin  and  growth  of,  7-8. 
basis  of,  8-1 1, 
rules  of,  1.1,  12. 
names  used  instead  of,  12-15. 
defined  and  distinguished,  15. 
Objections  to  the  term,  13,  14,  15. 

PRIZE: 

recognition  of  judgments   of,  230-242. 

PROCEDURE: 

what  is,  573-580. 

in  case  of  acts  arising  in  an  uncivilized  country,   104,   105. 

statute  of  frauds,  as,  481. 

governed  by  what  law,  573-580. 

remedies  and  process  as,  575. 

evidence  as,  576. 

set-off,  as,  577. 

PROCESS: 

as  procedure,  573. 

PROOF: 

of  foreign  law,  579. 


INDEX  r/j; 

PROPERTY: 

alien's  right  to  acquire,   106-125. 
locality  of  actions,  for  injury  lo,  126-149. 
as  affected  by  marriage,  352-361. 
transfers  of  personal,  362-379. 
conditional  sales  of  personal.  380.  386,  392. 
gifts  of  personal,  397. 
mortgages  of  personal,  400. 
wills  of,  553-567. 

PUBLIC  LNTERNATIONAL  LAW: 
defined  and  distinguished,  15. 
by  what  authority  is  it  a  part  of  the  law  of  a  country,  16-53. 

REAL  PROPERTY: 

taxes  on  is  governed  by  what  law,  99-101. 
conveyances  of,  401. 
descent  of,  547-553- 
will  of,  553-567- 

RECEIVER: 

powers  of,  217-229. 

REMEDY : 

is  procedure,  573-580. 

RESIDENCE: 

as  an  element  in  acquiring  domicil,  56. 
meaning  of,  when  used  in  a  statute,  57,  58. 
actual  residence  as  an  element   of  domicil,  76-79. 

REVERTER  OF  DOMICIL: 

in  case  of  domicil  of  origin,  63-75,  79-82. 
when  the  rule  applies,  79-82. 

RIGHTS: 

of  aliens,  106-125. 

of  foreign  assignees,  in  case  of  bankruptcy,  200-214. 

SERVANTS : 

domicil  of,  96,  97. 

SERVICE : 

of  process,  169-184. 

SET-OFF: 

a  part  of  procedure,  573-580. 

SHIPS: 

are  governed  by  what  laws,  16-53. 

on  the  high  seas,  governed  i)y  what  law,  52. 

SITUS: 

of  a  debt,  254-261. 


598  INDEX 

SOLDIERS: 

domicil  of,  96. 

SOVEREIGNTY : 

of  states,  169-184. 

STAMP  LAWS: 

extra-territorial  effect  of,  573-58o. 

STATE : 

territorial  jurisdiction  of,  16-53,  169-184. 
bankrupt  or  insolvency  laws,  effect  of,  200-214. 
power  of  to  exclude  corporations,  265-282. 
what  constitutes  doing  business  in,  281. 

STATUS : 

of  children  is  determined  by  domicil  of  parents,  64. 

political  and  civil  explained,  ^2. 

what  each  kind  of  status  determines,  72. 

STATUTES: 

extra-territorial  effect  if  penal,   150-168. 

STATUTES  OF  DESCENT: 

law  of,  in  case  of  real  estate.  547-553- 
STATUTES  OF  DISTRIBUTION: 

what  law  governs  in  personal  property,  547-553- 

STATUTE  OF  FRAUDS : 

effect  of,  on  contracts,  481.  et.  seq. 
as  procedure,  573-5^0. 

STATUTE  OF  LIMITATIONS: 
as  procedure,  S73-58o. 

STUDENTS : 

domicil  of,  96. 
right  to  vote,  96. 

SUCCESSION  : 

to  movable  property,  is  governed  by  what  law,  100. 

intestate,  law  of  domicil  determines  distribution  of  personality,  547- 

552. 
intestate,  law  of  place  where  real  estate  is  situated  governs.  547-552. 

to  real  estate  by  will,  553-567- 

to  personal  property  by  will.  553-567- 

SUCCESSION  DUTY: 

is  governed  by  the  law  of  what  place,  98-101. 

TAXES: 

domicil  as  a  basis  for,  98-101. 
on  personal  property,  what  law  governs.  99-101. 
on  real  estate,  what  law  governs,  99-101. 
succession,  governed  by  what  law,  98-101. 


INDEX  599 

TESTAMENTARY  GUARDIANS: 

rights,  duties,  and  powers  of,  215-229,  282-3C9. 

TESTAMENTARY  SUCCESSION  : 

validity  of  will  of  personal  property,  553-567. 

formalities,  capacity,  etc.,  of  will  of  personal  property,  553-567. 

validity  of  will  of  real  estate,  553-567. 

formalities,  capacity,  etc.,  of  will  of  real  estate,  553-567. 

THREE-MILE  ZONE: 

measured  from  low  water  mark.  46,  47. 

TORTS: 

jurisdiction  over,  when  committed  on  high  .seas,  51,  52. 
committed  in  uncivilized  country,  104. 

jurisdiction  over,  when  committed  abroad,  526,  529,  533,  538,  543. 
right  of  representative  to  sue  for.  538. 

TRANSITORY  ACTIONS: 

where  brought,   126-149.  526,  529,  533.  538,  543. 

TRESPASS: 

locality   of   actions    in   case   of,    126-149. 

TRUSTEE: 

powers  of,  217-229. 

power  of  to  sue  and  be  sued,  222,. 

UNCIVILIZED  COUNTRIES: 

consular  courts  in,  48. 

domicil  and  acts  in,   102-105. 

validity  of  marriage  in,  103. 

validity  of  a  contract  made  in,  103,  104. 

alienation  of  movables  in.  104. 

torts  committed  in.   104. 

procedure  in,  104,  105. 

marriage  in,  338-351- 

USURY: 

effect  of,  on  contracts,  470,  ct.  seq. 

VOTING: 

privilege  of,  96. 

WARD: 

domicil  of,  96. 

power  of  guardian  to  change  domicil  of.  96. 

WILLS: 

of  personal  property,  what   law  governs.  553-567. 
of  real  estate,  what  law  governs,  553-567. 
execution  of  power  in,  567-572. 


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